THE  LAW  AND  POLICY 
OF  ANNEXATION 


THE   LAW  AND   POLICY 
OF   ANNEXATION 


WITH  SPECIAL  REFERENCE  TO 

THE  PHILIPPINES 

TOGETHER  WITH 

OBSERVATIONS   ON   THE  STATUS   OF   CUBA 

BY 

CARMAN  F.RANDOLPH 

OF  THE  NEW  YORK  BAR 

AUTHOR  OF  "THE  LAW  OF  EMINENT  DOMAIN" 


LONGMANS,  GREEN,  AND  CO. 

91    AND  93  FIFTH  AVENUE,  NEW  YORK 

LONDON  AND  BOMBAY 

1901 


Copyright,  1901,  by 
Carman  F.  Randolph 


The  DeVinne  Press. 


^ 

■s 


-to  ss 

^)5   -^ 


To  My  Mother 


4;<;:b37y 


PREFACE 

The  annexation  of  the  Philippines  is  the  imme- 
diate reason  for  this  book,  which,  in  dealing  with  the 
event  itself,  advocates  withdrawal  of  our  sovereignty 
from  the  islands,  and  suggests  a  method  for  its 
accomplishment.  In  the  larger  and  permanent  pur- 
pose of  the  book  the  event  is  but  the  text  for  a 
general  discussion  of  annexation,  with  regard  to  the 
policies  proper  for  the  guidance  of  the  United  States 
in  the  matter  of  enlarging  their  territory,  and  to  the 
obligations  that  go  with  their  sovereignty. 

These  obligations  are  partly  of  a  moral  nature, 
and  partly  are  determined  by  the  Constitution.  Some 
of  the  questions  of  constitutional  law  involving  the 
taxation  of  commerce  have  been  argued  before  the 
Supreme  Court  in  causes  now  under  advisement,  and 
may  be  adjudicated  before  this  book  is  published : 
Yet  I  have  written  positively  on  the  whole  question 
of  constitutional  obligation  because  I  believe  that  in 


theory  of  law  the  Constitution  is  supreme  through- 
out the  jurisdiction  of  Congress,  and  because  its  su- 
premacy is  a  principle  generally  held  by  our  people, 


vu 


viii  PREFACE 

commonly  respected  by  our  Government,  and  recog- 
nized by  our  courts.  -— *~» 

The  true  policies  of  the  republic  discourage  any 
assumption  of  sovereignty  over  land  and  people  that 
tends  to  weaken  our  institutions,  or  lower  the  quality 
of  our  civic  body,  or  dull  our  sense  of  justice. 

MoRRiSTOWN,  New  Jersey, 
January,  1901. 


Note. —  I  have  incorporated  in  this  book  parts  of  two  pamphlets:  "  Con- 
•-^stitutional  Aspects  of  Annexation,"  December,  1898,  Harvard  Law  Review, 

January,  1899;  reprinted  in  the  Congressional  Record,  January  II,  1899;  and 
,-^' Notes  on  the  Law  of  Territorial  Expansion,"  March,  1900,  reprinted  in  the 

Record,  March  31,  1900. 


CONTENTS 

CHAPTER   I 
THE   ANNEXATION    OF   THE    PHILIPPINES 

THE   SPANISH   TITLE i 

ACQUISITION  BY  THE  UNITED  STATES 4 

The  Right  and  the  Method 4 

The  Purpose  of  Acquisition 8 

Our  Title  under  the  Treaty  of  Paris lo 

THE   EFFECT   OF   ACQUISITION 12 


CHAPTER   II 
THE  CONSTITUTION   AND   THE    PHILIPPINES 

ARGUMENTS  AGAINST  THE  RULE  OF  THE  CON- 
STITUTION   EXAMINED 29 

That  the  Constitution  is  not  Self-extending    ...    29 

That  the  Constitution  is  not  Effective  beyond  the 
North  American  Continent 34 

That  the  Constitution  was  Ordained  for  the  States 
Alone 35 

That   the    Power    of    the    United    States    over    An- 
nexed Territory  is  the    Same   as    that    Possessed 

BY  Other  Nations 43 

ix 


X  CONTENTS 

CHAPTER   III 

THE     APPLICATION     OF     THE     CONSTITUTION 
IN    THE    PHILIPPINES 

STATUS   OF    PERSONS 52 

Natural-Born  Citizens 52 

Indians  and  Foreigners 57 

The  Privilege  of  Election  —  The  Plebiscite  ....  59 

Change  of  Nationality 61 

Naturalized  Citizens d^ 

Slavery 65 

RIGHTS    OF    PERSONS 70 

Political  Franchises 70 

Civil  Rights 71 

TAXATION— COMMERCE 76 

Foreign  Commerce 76 

Domestic  Commerce 78 

The  Porto  Rico  Act 82 

The  Commercial  Unity  of  the  United  States   ...  91 

VALUE    OF   THE    CONSTITUTION    IN    NEW   TER- 
RITORY      98 

CONCLUSIONS   IN    REGARD   TO  THE    CONSTITU- 
TION    102 


CHAPTER    IV 
THE    GOVERNING   OF   THE    PHILIPPINES 

THE    POWERS   OF    THE    PRESIDENT 106 

Executive  Powers 106 

Usurpation  of  Legislative  Power 109 

THE   POWERS   OF   CONGRESS 121 

Source  and  Extent  of  Congressional  Powers  ...  122 

The  Exercise  of  Congressional  Powers 125 


CONTENTS  xi 

OUR    RELATION   TO    THE    OED    ORDER    ....  130 

The  Old  Laws 130 

Language 138 

Religious  Institutions 140 


CHAPTER   V 

THE    ALIENATION    OF   THE   PHILIPPINES 

THE    RIGHT   OF   ALIENATION 146 

THE    TERMS    OF    ALIENATION  — THE    PROTEC- 
TORATE       148 

THE    EXPEDIENCY    OF   ALIENATION 158 

Commercial  Considerations 158 

Moral  and  Political  Considerations 161 


OBSERVATIONS   ON   THE   STATUS   OF   CUBA  .    .  173 

APPENDIX    OF    DOCUMENTS 

{A) 

Joint  Resolution  in  Regard  to  Cuba 193 

Declaration  of  War 194 

Protocol  of  August  12,  1898 194 

Proclamation  of  the  Protocoi 196 

Treaty  of  Paris 197 

Act  of  March  21,  1899 204 

(^) 

Lease  of  Kiao-chau 205 

Charter  German  Colonization  Society 208 

French  Protectorate  over  Madagascar 209 

Transfer  of  Mysore  to  a  Native  Ruler 212 

Lagos  Protectorate  Order  in  Council 217 

* 

INDEX   OF    CASES 221 

GENERAL   INDEX 223 


CHAPTER    I 
THE  ANNEXATION  OF  THE  PHILIPPINES 


THE    SPANISH    TITLE 


10NG  ago,  Spain  became  entitled  to  the  Philippine 
J  Islands  in  accordance  with  the  public  law  of  the 
period  respecting  the  discovery  and  occupation  of 
land.  The  application  of  this  law  in  America  has 
been  described  by  Chief  Justice  Marshall  in  terms 
pertinent  in  regard  to  the  Indies:  "On  the  dis- 
**  covery  of  this  immense  continent,  the  great  nations 
"  of  Europe  were  eager  to  appropriate  to  themselves 
"  so  much  of  it  as  they  could  respectively  acquire. 
"  Its  vast  extent  offered  an  ample  field  to  the  ambi- 
"tion  and  enterprise  of  all;  and  the  character  and 
"religion  of  its  inhabitants  afforded  an  apology  for 
"  considering  them  as  a  people  over  whom  the  superior 
"genius  of  Europe  might  claim  an  ascendancy.  The 
"potentates  of  the  old  world  found  no  difficulty  in 
"convincing  themselves  that  they  made  ample  com- 
"pensation  to  the  inhabitants  of  the  new  by  be- 
"  stowing  on  them  civilization  and  Christianity  in 
"  exchange  for  unlimited  independence.  But,  as  they 
"were  all  in  pursuit  of  nearly  the  same  object,  it  was 
"necessary,  in  order  to  avoid  conflicting  settlements 
"and  consequent  war  with  each  other,  to  establish  a 
"principle  which  all  should  acknowledge  as  the  law 
"  by  which  the  right  of  acquisition,   which  they  all 


2  LAW  AND  POLICY  OF  ANNEXATION 

"  asserted,    should  be    reg^ulated   as  between   them- 
"  selves.     This    principle /f\vas    that   discovery   g|"ave  ., 
"title  to_the^o.vernmen^  by  whose  subjects,   or  by 
**  wKose    authority,    it  was   made,   against  all    other 
"European     governments,     which     title     might    be'/ 
"  consummated  by  possession. 

"The  exclusion  of  all  other  Europeans  necessarily 
"  gave  to  the  nation  making  the  discovery  the  sole 
"right  of  acquiring  the  soil  from  the  natives  and 
"establishing  settlements  upon  it.  It  was  a  right 
"with  which  no  Europeans  could  interfere.  It  was 
"  a  right  which  all  asserted  for  themselves,  and  to  the 
"assertion  of  which,  by  others,  all  assented."^ 

The  circumstances  of  Spain's  tenure  of  the  Phil- 
ippines are  of  historical  rather  than  legal  interest, 
for  the  law  in  respect  of  national  title  to  land  takes 
no  account  of  its  ori^n,  noroiaiiysubsequent  trans- 
'  lers  which  in  private  transactions  would  form  what  is 
^l6  Cff\  •  called  a  chain  of  title. JjfThe  state  having  possession 
^p  .^fv/'v  under  claim  of  title  is  regarded  as  the  sovereign  pro- 
prietor without  reference  to  the  manner  of  acquiring 
it.  Often  this  rule  secures  the  fruits  of  oppression 
and  fraud,  yet  none  other  is  practicable.  As  the 
alternative  of  disorder,  the  status  quo  demands  respect 
from  the  generality  of  states  untiT,"  tlirough  some 
convulsion  of  war,  or  some  compact  a  new  order 
comes  into  being-,  thenceforth  leo^itimated  until  it  in 
turn  shall  be  changed.  And  through  just  war  px 
compact  lands  held  wrongfully  are  sometimes  regained 
by  their  proper  sovereigns. 

According  to  these  principles  Spain,   at  the  out- 
^  Johnson  V,  Mcintosh,  8  Wheaton  543,  572. 


THE  ANNEXATION  OE  THE  PHILIPPINES      3 

break  of  the  war,  possessed  the  Philippines  in  ex- 
ckisive  sovereignty.  That  she  had  not  reclaimed  all 
parts  of  the  Archipelago,  nor  bent  all  its  savage  tribes 
to  her  will  no  more  affected  her  possession  than  did 
like  shortcomings  affect  our  possession  of  the  western 
wilderness  in  earlier  days. 

But  some  contend  that  the  title  enjoyed  by  Spain  at 
the  beginning  of  the  war  was,  at  the  making  of  the 
Treaty  of  Paris,  so  shattered  by  insurgent  Filipinos 
that  Spain  had  really  nothing  to  convey  to  the 
United  States.  This  declaration  is  based  on  a  ques- 
tionable fact  and  a  serious  misapprehension  of  law. 
From  the  battle  of  Manila  Bay  to  the  capture  of  Manila 
the  insurrection  is  not  separable  from  our  campaign. 
Our  hostile  preparations  revived  it ;  our  ships  brought 
back  its  leader ;  our  aid  made  it  so  formidable  that 
when  Manila  fell  Spain  was  mistress  only  of  the  few 
towns  in  which  her  troops  were  huddled.  During 
this  period  the  insurgents  were,  practically,  our  allies, 
and  it  is  contemptible  to  belittle,  now,  their  service 
in  arraying  the  native  population  against  Spain. 
Yet  the  relation  was  not  that  equal  alliance  between 
states  which  creates  reciprocal  obligations  under  in- 
ternational law,^  but  rather  an  unequal  alliance  be- 
tween a  state  and  a  rebellious  people  who  make 
common  cause  against  the  latter's  sovereign. 

Even  if  a  just  estimation  of  the  facts  had  approved 
the  claim  of  the  insurgents  to  an  independent  con- 
quest of  the  greater  part  of  the  islands,  they  would 
not  have  made  good  a  legal  title  to  the  land  against 
Spain:  For  a  state  does  not  lose  title  tjbrough  in- 
surrection unless  an  insurgent  government  holds 
1  See  The  Resolution,  2  Dallas  i. 


i 


4  ZA  W  AND   POLICY  OF  ANNEXA  TION 

territory  beyond  the  likelihood  of  reconquest ;  and 
recognition  of  this  government  by  neutral  states  is, 
generally,  the  sign  of  a  new  order. 

The  United  States  have  respected  this  rule 
abroad,  notably  in  insurrections  of  Spanish- American 
colonies.  Thev  succeeded  in  securing-  its  benefit  for 
themselves  in  the  Civil  War,  when,  during  four  years, 
an  insurgent  government  governed  a  large  territory 
from  a  fixed  capital,  and  kept  great  armies  in  the 
field :  And,  though  the  proper  application  of  the 
rule  is  always  a  matter  of  delicacy,  technically,  the, 
United  States  have  acted  within  their  rights  in  ac- 
cepting it  in  the  case  of  the  Philippines. 

Finally,  the  United  States  have  put  all  question  of 
Spain's  title  beyond  discussion.  By  accepting  the 
islands  from  her  hands,  they  have  determined  its 
sufficiency  for  themselves,  and  no  other  nation  is 
concerned  to  question  it. 

Being  entitled  to  the  Philippines,  Spain  had  the 
legal  right  to  cede  them,  as  well  by  the  particular 
law  of  her  Constitution  as  by  the  principles  of  public 
law. 


ACQUISITION    BY    THE    UNITED    STATES 

The  Right  a7id  the  Method 

r  The  United  States  have  the  right  to  enlarge  their 
territory,  and  the  field  of  its  exercise  is  not  restricted 
by  any  legal  limitation.      "The  Constitution  confers 

."absolutely  on  the  government  of  the    Union    the 


THE  ANNEXATION  OF  THE  PHILIPPINES       5 

"  powers  of  making' war  and  of  niaking  treaties  ;"  says 
Chief  Justice  Marshall,  "consequently  that  govern- 
"ment  possesses  ihe  .pQwef  of  acquiring  territory 
"either  bj^  conquest  or  by  treaty."^ 

While  the  moral  purpose  of  the  war  power  is-^ 
figured  in  Taney's  declaration:  "The  genius  and 
"character  of  our  institutions  are  peaceful,  and  the 
"  power jD._declare  war  was  not  conferred  upon  Con- 
"gress  for  the  purpose  of  aggression  or  aggrandize- 
"  ment,  but  to  enable  the  general  government  to  vindi- 
"cate  by  arms,  if  it  should  become  necessary,  its  own 
"  rignts  and  the  rights  of  its  citizens  "  ;  ^  yet,  if  aggran- 
dizement shall  follow  a  war  declared  for  whatever 
reason,  we  must  hold  with  Marshall,  that  "conquest 

...  .    -,  1    •     1         1  r     1  iia«»5»8»«' 

"p'lves  a  title  which  the  courts  01  the  conqueror  can- 
"  not  deny,  whatever  the  private  and  speculative 
"opinions  of  individuals  may  be  respecting  the  ori- 
"  ginal  justice  of  the  claim  which  has  been  successfully 
"asserted."^ 

A  state  may  also  add  to  its  domain  by  discovery 
and  settlement,  and  the  Supreme  Court  has  recog- 
nized this  method  of  acquisition  as  being  approved 
by  the  law  of  nations;*  though  it  may  be  approved 
more  satisfactorily  as  being  inferred  from  the  more 
apposite  constitutional  powers  of  contract  and  con- 
quest: {{{  a  nation  can  buy  or  seize  land,  surely  it 
can  find  and  keep  land.)  / 

Reliance  upon  national,  rather  than  international 

1  American  Ins.  Co.  v.  Canter,  i  Peters  511,  541. 

2  Fleming  v.  Page,  9  Howard  603,  614. 

3  Johnson  v.  Mcintosh,  8  Wheaton  543,  588. 

*  Johnson  v.  Mcintosh,  8  Wheaton  543;  Jones  v,  U.  S.,  137  U.  S. 
202,  212  ;  Shively  v.  Bowlby,  152  U.  S.  i,  50. 


■^ 


6  LAW  AND  POLICY  OF  ANNEXATION 

law  as  the  basis  of  our  national  powers  is  usually 
enjoined  by  the  superior  value  of  the  domestic  law  in 
this  relation.  When  Lord  Mansfield  said  that  an 
act  of  Parliament  "did  not  intend  to  alter,  nor  can 
"  alter,  the  law  of.nadons,"  ^  he  stated  merely  the  self- 
evident  fact  that  the 'legislature  of  a  single  country 
cannot  change  a  body  oF^principles  which  derives  its 
repute  from  the  assent  of  all  countries.  He  did  not 
mean  that  a  legislature  is  dominated  by  the  law  of 
nations.^  This  law  ought  to  be  respected  wherever 
it  is  clearly  ascertained,  even  at  great  cost  to  national 
pride,  if  for  no  higher  reason  than  this,  that  deference 
accorded  to-day  strengthens  a  demand  for  deference 
to-morrow.  Our  Constitution  enjoys  the  unique  dis- 
tinction, I  believe,  of  commending  this  law  to  its 
courts,  and  American  jurists  have  done  much  to 
broaden  and  strengthen  its  influence.  But  in  all 
matters  of  domestic  interest  the  United  States  should 
find  their  sufficient  powers  in  the  domestic  law  which 
they  ordain  and  control.  This  caution  is  timely,  be- 
cause there  is  a  perverse  disposition  to  determine  our 
relations  with  Porto  Rico  and  the  Philippines  by  in- 
ternational law,  in  contempt  of  the  truth  that  by  as- 
suming complete  sovereignty  over  these  islands  we 
have  eliminated  this  law  from  our  reckoning. 

Texas  and  Hawaii  were  annexed  by  joint  resolu- 
tion of  the  Senate  and  Housc,^  because  treaties  of 
cession  could  not  command  the  necessary  two-thirds 

^  Heathfield  v.  Chilton,  4  Burr.  2016. 

2  See  also  Savigny,  Conflict  of  Laws,  Guthrie's  translation,  2d  ed., 
p.  75,  note. 

3  U.  S.  Statutes  at  Large,  ix,  108;  xxx,  750. 


THE  ANNEXATION  OF  THE  PHILIPPINES       7 

vote  in  the  Senate.  This  method  is  as  effective  as  a 
treaty,  though  the  reasons  for  its  actual  employment 
have  subjected  it  to  political  criticism.  Indeed,  the 
case  is  conceivable  where  a  resolution  or  act  of  Con- . 
gress  may  be  the  only  formal  method  of  annexation; 
if,  for  example,  we  sHrbnld  now  annex  'Cuba,  in 
despite  of  our  promise ;  an  act  or  resolution  would 
be  the  most  orderly  means  to  the  end,  because  there 
is  no  state  in  Cuba,  at  present,  with  whom  we  can 
make  a  treaty. 

Annexation  should  be  accomplished  through  for- 
mal procedure,  yet,  after  all,  it  is  so  far  a  matter  of 
Tact  that  a  case  may  arise  where  it  would  be  inferred 
from  an  actual  subjection  of  territory  to  our  legisla- 
tive and  executive  jurisdiction,  without  preliminary 
formalities. 

Whenever    the    President    and    Congress  join   in 

extending  the  sovereignty  of  the  United  States  over 

a  particular  territory  their  action  must  be  respected 

by  the  courts,  without  regard  to  its  location.     "Who   \ 

"is  the  sovereign  de  jure  and  de  facto  of  a  territory,"   ' 

says  the  Supreme   Court,   "  is  not  a  judicial  but  a 

"political  question,  the  determination  of  which,  by 

"  tlTe  legislajdve  and  executive  departments  of  any  ; 

"  government  conclusively  binds  the  judges,  as  well 

"as  all  other  officers,  citizens,  and  subjects  of  that    : 

"government.     This  principle  has  always  been  up- 

"  held  by  this  court,  and  has  been  affirmed  under  a 

"  great  variety  of  circumstances."  ^  ^ — 

1  Jones  V.  U.  S.,  137  U.  S.  202,  212;  citing  among  American 
cases  Gelston  v.  Hoyt,  3  Wheaton  296,  324;  Foster  v.  Neilson,  2 
Peters  253,  307,  309;  and,  among  English  cases.  Emperor  of  Aus- 
tria V.  Day,  3  De  G.  F.  &  J.  217,  221,  233. 


LAW  AND   POLICY  OF  ANNEXATION 


\^''  The  Purpose'-  of  Acquisition 


Is  the  power  to  annex  conditioned  upon  the  for- 
maJdgin  of  States  out  of  the  new  territory  ?  This 
question  is  not  suggested  by  the  acquisition  of  small 
tracts  for  specific  governmental  uses,  such  as  coaling- 
stations,  or  of  vacant  guano  islands  under  the  Act  of 
1856.^  Nor  can  it  be  urged  as  a  legal  objection  to 
an  annexation  that  the  country  has  not  been  annexed 
as  a  State,  or  in  express  contemplation  of  future 
statehood,  for  the  admission  of  a  State  is,  like  the 
selection  of  territory,  a  political  matter  beyond 
the  competency  of  the  courts.  But,  according  to  the 
spirit  of  the  Constitution,  the  subjection  of  annexed 
territory  to  exclusive  federal  control  is,  generally,  an 
abnormal  and  temporary  stage  preceding  a  nor- 
mal and  permanent  condition  of  statehood.  Chief 
Justice  Marshall  described  the  Territories  as  being 
**  in  a  state  of  infancy  advancing  to  manhood,  look- 
"  ing  forward  to  complete  equality  so  soon  as  that 
"state  of  manhood  shall  be  attained."^  Chief  Justice 
Taney  declared  that  the  power  to  admit  new  States 
authorizes  "  the  acquisition  of  territory  not  fit  for 
"admission  at  the  time,  but  to  be  admitted  as  soon 
"  as  its  population  and  situation  would  entitle  it  to  ad- 
"  mission."^  And  Mr.  Justice  Gray  has  said:  "Upon 
"the  acquisition  of  a  Territory  by  the  United  States, 
"  whether  by  cession  from  one  of  the  States,  or  by 
"treaty  with  a  foreign  country,  or  by  discovery  and 
"settlement,  the  same  title  and  dominion  passed  to 

1  U.  S.  Revised  Statutes,  §  5570. 

2  Loughborough  v.  Blake,  5  Wheaton  317,  324. 
•^  Scott  V.  Sandford,  19  Howard  393,  447. 


THE   ANNEXATION  OF  THE  PHILIPPINES      9 

"the  United  States,  for  the  benefit  of  the  whole 
"people  and  in  trust  for  the  several  States  to  be 
"ultimately  created  out  of  the  Territory."^ 

All  the  land  ceded  to  the  United  States  by  the 
States  was  transferred  upon  the  understanding  that 
it  should  be  formed,  eventually,  into  States.  The 
Third  Article  of  the  Treaty  of  1803,  by  which  F"rance 
ceded  Louisiana,  reads:  "The  inhabitants  of  the 
"ceded  territory  shall  be  incorporated  into  the  Union 
"of  the  United  States,  and  admitted  as  soon  as 
"  possible,  according-  to  the  principles  of  the  Federal 
"  Constitution,  to  the  enjoyment  of  all  the  rights, 
"  advantages,  and  immunities  of  citizens  of  the  United 
"  States.  .  .  ."  This  article  was  construed  by  Chief 
Justice  Marshall  to  mean  "that  Louisiana  shall  be 
"admitted  into  the  Union,  as  soon  as  possible,  upon 
"  an  equal  footing  with  the  other  States  ";  ^  and  a 
like  meaning  is  to  be  placed  upon  the  Treaty  of 
18 19,  by  which  Spain  ceded  Florida,  and  the  Treaties 
of  1848  and  1853,  by  which  Mexico  ceded  California 
and  New  Mexico.  With  the  single  exception  of 
Texas,  which  was  annexed  by  force  of  a  joint 
resolution  admitting  it  as  a  State,  the  vast  domain 
gained  by  the  United  States  down  to  1867  was 
acquired  in  trust  for  States  to  be  subsequently 
admitted. 

The  promise  of  statehood  was  not  expressed  in 
annexing  Alaska,  Hawaii,  and  the  lately  acquired 
Spanish  islands.  These  omissions  are  without  legal 
significance,  but,  excepting  the  peculiar  case  of  Alaska, 
an  Arctic  desert  bought  to  at  once  oblige  a  friendly 

iShively  v.  Bowlby,  152  U.  S.  i,  57. 

2  New  Orleans  v.  De  Armas,  9  Peters  224,  235. 


lo  LAW  AND  POLICY  OF  ANNEXATION 

autocrat  and  bow  him  out  of  this  hemisphere,  they  are 
of  deep  political  import.  They  mark  the  first  sig- 
nificant refusal  to  contemplate  statehood  as  the  des- 
tiny of  annexed  territory.  This  refusal  is  enough  of 
itself  to  discredit  the  attempt  to  connect  our  acquisi- 
tions from  Louisiana  to  the  Philippines  by  a  chain  of 
common  purpose.  In  annexing  the  Philippines  we 
have  broken  with  tradition. 


Our  Title  under  the  Treaty  of  Paris 

However  the  Treaty  of  Paris  should  be  considered 
in  the  light  of  justice  and  policy,   it  expressed  the 
lawful  intentions  of  the  signatory  powers,  and  brought 
the    islands    under    the    sovereignty    of  the   United 
States.     And  it  must  be  understood  that  our  title  to  all  [ 
the  land  acquired  as  a  result  of  the  war  with  Spain  is  j 
derived  from  Spain  exclusively.   The  President  says  in  ' 
his  annual  message  of  1899  :  "The  authorities  of  the 
"  Sulu  Islands  have  accepted  the  succession  of  the 
**  United  States  to  the  rights  of  Spain,  and  our  flag 
"floats  over  that  territory."^    This  statement  may 
convey  the  wrong  impression  that  our  interest  in  the 
Sulus  differs  in  derivation  and  quality  from  our  inter- 
est   in    the    rest   of  the   Philippines  —  in  derivation 
because    it    is  strengthened   by  the    consent  of  the 
sultan  ;  in  quality,  because  the  statement  may  imply, 
what  has,  indeed,  been  asserted,  that  "the  rights  of 
"  Spain"  in  the  Sulus  were  those  of  a  protector  rather 
than  of  a  sovereign  proprietor. 

Now  it  is  true  that  in  1878  Spain  made  an  agree- 
ment with  the  sultan  which  perhaps  recognizes  him 

1  Page  43. 


THE  ANNEXATION  OF  THE  PHILIPPINES     ii 

as  the  head  of  a  vassal  state,  and,  some  months  after 
the  ratification  of  the  Treaty  of  Paris,  General  Bates 
was  instructed  to  take  this  agreement  into  account  in 
dealing  with  him.^  Then  in  1885  Great  Britain, 
Germany,  and  Spain  signed  a  protocol  in  which 
Spanish  sovereignty  over  Sulu  was  recognized,  and 
Spain  agreed  to  relinquish  any  claim  to  territory  in 
Borneo  based  on  the  pretensions  of  the  sultan.^  But 
any  suggestions  of  a  debased  sovereignty  in  the 
sultan,  perhaps  not  unlike  that  attributed  to  the  Indian 
chiefs,  with  whom  the  United  States  have  made 
treaties,  do  not  qualify  the  cessionary  clauses  of  the 
Treaty  of  Paris ;  and  this  is  fortunate,  because  it 
would  be  most  embarrassing  for  the  United  States  to 
claim  Sulu  by  consent  of  the  sultan,  when  that  con- 
sent was  given  in  an  agreement  which  Congress  has 
been  compelled  to  treat  with  contempt  because  of  its 
qualified  recognition  of  slavery. 

The  article  of  cession  in  the  Treaty  of  Paris  was 
submitted  by  the  American  Commission  in  what 
proved  to  be  its  accepted  form,  and  its  precise  de- 
limitation of  the  "Philippine  Archipelago  "  embraced 
the  unmentioned  Sulu  group.  The  assertion  of  the 
Spanish  Commissioners  that  the  "  Philippines "  did 
not  include  the  Sulus  and  the  great  island  of  Min- 
danao was  a  play  for  better  terms.  They  said  in 
effect:  "You  are  willing  to  pay  $20,000,000  for  the 
"'Philippines.'  Here  are  the  'Philippines';  if  you 
"want  Mindanao  and  the  Sulus  as  well  you  must  pay 
"more."     The  American   Commissioners  replied  in 

1  See  General  Otis's  Report  for  1899,  pp.  153-156. 

2  See  Westlake,  Chapters  on  the  Principles  of  International  Law, 

P-  173- 


12  LAW  AND  POLICY  OF  ANNEXATION 

effect:  "The  'Philippines'  we  demand,  and  which 
"you  will  cede  without  change  in  terms,  include Min- 
"  danao  and  the  Sulus."  Of  course  the  victors  proved 
to  be  better  geographers  than  the  vanquished. 
Throughout  the  negotiations  Spain's  ability  to  trans- 
fer the  complete  sovereignty  of  all  the  land  demanded 
by  the  United  States  was  never  questioned,  and 
in  the  treaty  she  assumed  to  cede,  and  the  United 
States  accepted  sovereignty  over  all.  We  cannot 
afford  to  esteem  that  sovereignty  as  less  than  perfect 
and  all-embracing.  We  will  not  go  behind  the  Treaty 
of  Paris  for  confirmation  of  our  title  to  any  part  of 
the  Philippines.  As  we  have  not  sought  "  the  con- 
"  sent  of  the  governed  "  from  the  people  of  Luzon,  we 
cannot  even  appear  to  recognize  its  necessity  in  deal- 
ing with  slaveholding  and  polygamous  barbarians  , 
who  are  only  restrained  from  piracy  by  gunboats  and 
blackmail. 

This  certificate  of  title  sufficiently  demonstrates  I! 
our  legal  right  to  possess  the  Philippines,  and  with  ■ 
legal  rights  only  are  we  at  present  concerned. 

THE    EFFECT    OF    ACQUISITION 

The  first  question  suggested  by  the  cession  of  the 
Philippines  is  whether  it  has  incorporated  the  islands 
into  the  United  States. 

In  some  international  sense  "the  United  States" 
defines  all  the  territory  in  which  the  Federal  Govern- 
ment is  responsible  before  foreign  nations.  An  ex- 
ecutive occupation  of  new-found,  or  abandoned,  or 
hostile  territory  will  bring  it  within  the  international 


THE  ANNEXATION  OF  THE  PHILIPPINES     13 


\ 


boundaries  of  the  United  States,  because  among  the  1  I 
nations  the  state  in  visible  control  of  a  country  is 
accounted  its  sovereign  for  important  purposes.^  But 
land  occupied  through  enterprise  or  conquest,  uncon- 
firmed by  the  legislature,  does  not  become  part  of 
the  United  States  in  a  domestic  sense,  though  the 
act  be  prompted  or  approved  by  the  President.  The 
power  to  enlarge  the  republic  is  vested  in  the  treaty- 
making  body  and  also  in  Congress,  but  not  in  the 
executive  alone." 

English  law  is  different.  The  Crown,  having  the 
powers  of  making  war  and  treaties,  is  competent  to 
gain  territory  through  their  employment,  but  the  land 
acquired  does  not  become  the  exclusive  dominion  of 
the  Crown.  In  the  words  of  Lord  Mansfield,  "  A 
"country  conquered  by  the  British  arms  becomes  a 
"dominion  of  the  King  in  right  of  his  Crown,  and 
"therefore  necessarily  subject  to  the  legislature,  the 
"Parliament  of  Great  Britain."^ 

Whether  the  new  dorpinion  be  actually  subjected  to 
laws  imposed  by  the  Crown,  by  a  local  government, 
or,  rarely,  by  Parliament  itself,  depends  on  the  will 
of  the  latter. 

Unquestionably  the  Philippines  are  part  of  the 
United  States  in  an  international  sense. 

As  the  seat  of  a  governing  community  "the 
"United  States"  are  the  States  of  the  Union  only. 

^See  Thirty  Hogsheads  of  Sugar  v.  U.  S.,  9  Cranch  191,  195; 
U.  S.  V.  Rice,  4  Wheaton  246 ;  Fleming  v.  Page,  9  Howard  603, 

615- 

'^  See  Fleming  v.  Page,  9  Howard  603,  614. 

2  Hall  V.  Campbell,  Cowper  204,  218.  See  also  The  Foltina, 
I  Dodson's  Admiralty  450. 


14  LAW  AND  POLICY  OF  ANNEXATION 

The  whole  pohtical  power  of  the  repubHc  is  vested 
in  these  forty-five  States  and  their  people.  The 
Philippines  are  no  part  of  this  "  United  States,"  so 
there  is  no  reason  for  the  cry  of  alarm  that  their  in- 
corporation into  the  territorial  body  of  the  republic 
would  mean  the  admission  of  millions  of  Asiatics  to 
the  body  politic. 

There  is  a  third  definition  of  "the  United  States." 
As  the  dominion  of  a  sovereign  nation  "the  United 
"  States  "  describes  a  territory  larger  than  the  area  of 
the  States,  but,  at  present,  smaller  by  the  area  of 
Cuba    than    our     "international"    territory.       This 
"United   States"  comprises  all  the   land  within  the 
territorial  jurisdiction   of  Congress,  and  makes  one 
national  territory.     This  definition  is  repudiated  by 
the  Administration,  whose  attitude  toward  our  new 
possessions  is  based  on   the  theory  that  while  the 
treaty-making  body  intended  to  bring,  and  did  bring 
the  islands  under  the  complete   sovereignty  of  the 
United  States,  it  intended  to  hold,  and  did  hold  them 
aloof  from  the  United  States,  except  in  that  interna- 
tional sense  which  conveys  no  idea  whatever  of  do- 
mestic unity.     This  theory  has  been  lately  approved 
in  one  of  the  circuit  courts  of  the  United  States.     In 
the  court's  opinion  we  read:     "The  different  States 
"are  usually  held  to  be  foreign  to  each  other  except 
"as   concerns    international  relations.     Sister   State 
"judgments    are,   for    most    purposes,  foreign  judg- 
"ments,  and  generally  for  all   purposes  other  than 
"  those    specifically    mentioned    in    the   Constitution 
"our  States  are  foreign  to  each  other.     On  the  same 
"principle  Porto  Rico  remains  foreign  to  the  United 


THE  ANNEXATION  OF  THE  PHILIPPINES     15 

"States  except  as  provided  in  the  Treaty."^  Here  is 
a  false  analogy.  The  real  relation  of  our  States  to 
each  other,  and  the  supposed  relation  of  our  new  pos- 
sessions to  the  United  States  are  not  referable  to 
**the  same  principle."  The  dominion  of  the  repub- 
lic is  platted  into  political  divisions,  including  Terri- 
tories, the  District  of  Columbia,  and  Indian  reserva- 
tions as  well  as  States,  and  in  some  respects  these 
are  foreign  to  each  other.  A  corporation,  ajudgment, 
a  will  originating  in  one  of  these  divisions  is  foreign 
in  the  others :  A  person  charged  with  crime  in  one 
division  can  be  brought  back  from  another  only  by 
process  of  extradition.  In  this  sense  the  Philippines 
and  Porto  Rico  are  foreign  to  each  other,  and  to  all 
the  remaining  divisions.  But  none  of  these  divisions 
is  foreign  before  the  Federal  Government.  Even 
the  States  which  enjoy  a  measure  of  sovereignty  are 
not  "  foreign  states" ;  and  a  clash  of  federal  and  State 
sovereignties  is  impossible,  theoretically,  so  accurately 
is  the  sphere  of  each  supposed  to  be  defined.  Not- 
withstanding the  singular  relation  of  the  Indian  tribes 
to  our  Government,  the  territory  they  occupy  "is  ad- 
"mitted,"  says  Chief  Justice  Marshall,  "to  compose  a 
"part  of  the  United  States."^  Since  the  political 
divisions  whose  people  possess  some  real  or  shadowy 
sovereignty  are  not  "  foreign  "  to  the  United  States, 
how  can  territory  within  their  exclusive  jurisdiction 
be  other  than  domestic  ? 

The  real  rationale  of  the  opinion  in  Goetze  v.  The 
United  States  is  found  in  its  affirmative  answer  to 
what  the  court  says  is  the  sole  constitutional  ques- 

1  Goetze  v.  U.  S.,  103  Federal  Rep.  72,  Zt^. 

2  Cherokee  Nation  v.  Georgia,  5  Peters  i,  17. 


i6  LAW  AND  POLICY  OF  ANNEXATION 

tion :  "May  our  Government  accept  the  title  of  and 
"sovereignty  over  territory  and  at  the  same  time 
"preserve  its  status  as  foreign  territory  so  far  as  in- 
"ternal  relations  are  concerned?"' 

The  theory  that  the  treaty-making  body,  or  Con- 
gress itself  for  that  matter,  can  extend  the  com- 
plete and  exclusive  sovereignty  of  the  republic  over 
territory  without  incorporating  it  within  the  national 
boundaries  of  the  United  States  lies  at  the  root  of  | 
the  great  legal  questions  of  domestic  interest  sug- 
gested by  the  Treaty  of  Paris,  and  it  seems  to  be 
fostered  by  the  notion  that  this  body  has  a  free 
hand  in  the  making  of  territorial  arrangements  in 
behalf  of  the  republic.  The  theory  that  treaty  pro-: 
visions  are  a  law  unto  themselves  has  a  certain  at-' 
traction  because  engagements  with  foreign  states  are 
presumably  sacred  ;  but  this  ethical  principle  does  not 
necessarily  bind  our  courts.  Should  Congress  pass 
an  act  inconsistent  with  a  treaty  pledge  a  court  would 
enforce  the  act,  and  not  the  treaty,  holding  simply 
that  an  old  law  had  been  repealed  by  a  new  one.^ 

Another  argument  for  attributing  unlimited  powers 
to  the  treaty-making  body  is  that  it  must  be  compe- 
tent to  act  quickly  and  decisively  in  the  most  serious 
emergencies.  What  agreements  and  concessions  the 
President  and  Senate  might  be  forced  to  make,  and 
the  republic  be  forced  to  accept  by  a  conqueror, 
suggests  a  circumstance  too  humiliating  and  too  re- 
mote to  affect  the  interpretation  of  their  powers  in 
normal  cases.     And   the  Treaty  of  Paris  is  on  our 

1  103  Federal  Rep.  72,  79. 

2  Head-money  Cases,  112  U.  S.  580;  Fong  Yue  Ting  v.  U.  S., 
149  U.  S.  698;  U.  S.  V.  Old  Settlers,  148  U.  S.  427. 


THE  ANNEXATION  OF  THE  PHILIPPINES      17 

part  a  normal  act,  requiring  no  sacrifice  of  constitu- 
tional principle  to  the  law  of  necessity.  The  theory 
of  the  independence  of  the  treaty-making  power  finds 
no  place  in  our  jurisprudence.  Though  the  Supreme 
Court  has  never  been  obliged  to  declare  a  treaty 
provision  unconstitutional,  and  would  do  so  with  pe- 
culiar reluctance,^  it  holds,  as  a  matter  of  course,  that 
treaties  are  subordinate  to  the  Constitution.^  "  It 
"  need  hardly  be  said,"  says  the  Court,  "  that  a  treaty 
"cannot  change  the  Constitution  or  be  held  valid  if  it 
"be  in  violation  of  that  instrument.  This  results  from 
"the  nature  and  fundamental  principles  of  our  Gov- 
"ernment."^  Even  in  Great  Britain  it  is  doubtful 
whether  the  courts  would  respect  a  treaty  provision 
repugnant  to  "the  law  of  the  land,"* 

With  the  assurance  that  the  treaty-making  body, 
like  Congress,  is  bound  to  respect  the  organic  law 
which  created  it,  we  proceed  to  examine  the  particu- 
lar assertion  that  while  the  Treaty  of  Paris  effects  a 
complete  transfer  of  the  sovereignty  of  the  Philip- 
pines from  Spain  to  the  United  States,  the  presence 
of  certain  clauses  and  the  absence  of  others  forbid 
the  conclusion  that  the  Archipelago  is  incorporated 

1  See  Ware  v.  Hylton,  3  Dallas  199,  237. 

2  See  U.  S.  V.  The  Peggy,  i  Cranch  103,  no;  New  Orleans  v. 
U.  S.,  10  Peters  662,  736;  Lattimer  v.  Poteet,  14  Peters  414; 
Doe  V.  Braden,  16  Howard  635,  657;  Geofroy  v.  Riggs,  133 
U.  S.  267  ;  Thomas  v.  Gay,  169  U.  S.  264,  271  ;  License  Cases,  5 
Howard  504,  613. 

^The  Cherokee  Tobacco,  11  Wallace  616,  620. 

■'See  The  Parlement  Beige,  4  P.  D.  129,  5  P.  D.  (C.  A.)  197; 
Walker  v.  Baird,  [1892]  A.  C.  491;    Dicey,  Law  of  the  Constitu- 
tion, ist  Ed.  391. 
2 


i8  LAW  AND  POLICY  OF  ANNEXATION 

in  the  United  States,  and  leave  it  a  foreign  country 
in  respect  of  the  internal  administration  and  policy 
of  the  republic. 

The  Fourth  Article  of  the  Treaty  reads:  "The 
"  United  States  will,  for  the  term  of  ten  years  from 
"  the  date  of  the  exchange  of  the  ratifications  of  the 
"present  treaty,  admit  Spanish  ships  and  merchan- 
"  dise  to  the  ports  of  the  Philippine  Islands  on  the 
"same  terms  as  ships  and  merchandise  of  the  United 
"  States."  It  is  argued  that  this  trade  privilege 
could  not  be  accorded  in  a  part  of  the  United  States, 
because  of  the  prescription  of  uniformity  of  duties 
"throughout  the  United  States,"  and  therefore  that 
its  appearance  in  a  treaty  is  proof  that  the  islands  have 
not  been  incorporated.  This  argument  puts  the  cart 
before  the  horse.  Whether  the  Philippines  are  in- 
corporated depends  altogether  upon  the  legal  effect 
of  the  cession  of  sovereignty  —  a  principal  part  of 
the  treaty  wholly  unaffected  by  this  subsidiary  clause, 
which,  if  incompatible  with  the  consequence  of  ces- 
sion, may  be  declared  invalid  by  our  courts  in  a  proper 
suit.  Treaties,  like  statutes,  are  to  be  construed  so 
that,  if  possible,  all  their  parts  shall  stand  ;  but  if  this 
subsidiary  provision  be  declared  unconstitutional  by 
the  courts  it  will  be  excised  without  damage  to  the 
remainder.  If  this  trading  privilege  be  illegal,  its 
excision  would  not  operate  to  retrocede  the  islands  to 
Spain,  nor  to  alter  the  title  by  which  we  hold  them. 
The  agreement  is  a  condition  subsequent  to  cession, 
and  non-performance,  whether  through  perversity  or 
constitutional  inability,  would  only  give  Spain  a 
grievance. 

The   Ninth    Article    declares    that    "  the    political 


\ 


\ 


THE  ANNEXATION  OF  THE  PHILIPPINES     19 

"  status  and  civil  rights  of  the  native  inhabitants  of 
"  the  territories  hereby  ceded  to  the  United  States 
"shall  be  determined  by  the  Congress,"     This  sin- 
gular declaration   is  supposed  to  negative  the   idea 
of  an  incorporation  of  territory.     Says  the  Court  in 
the  Goetze  case  :  ^  "  If  this  treaty  must  be  so  construed 
"that  the  territory  is  incorporated  into  the  United 
"States,  while  the  inhabitants  are  denied  the  polit- 
"  ical  status  and  civil  rights  of  citizens,    the  treaty 
"must  be  declared  unconstitutional,  and  in  that  case 
"Porto  Rico  [and  of  course  the  Philippines]  remains 
"a    foreign  country."     This  cannot  be  true.      It  is 
incredible  that  a  judicial  annulment  of  this  clause,  as 
being    inconsistent    with    an    incorporation    inferred 
from  an  accepted  cession,  should  invalidate  the  cession 
itself,  and   leave  the  United  States  in  wrongful  pos- 
session of  a  foreign  land  on  the  theory  that,  by  this 
reservation,  they  had  disabled  themselves  from  accept- 
ing the  inevitable  consequences  of  a  rightful  posses- 
sion.    The  truth  is  that  the  real  position  of  a  subsidiary 
clause  is  again  exaggerated,  and  with  less  excuse,  if 
possible,  than  in  the  case  of  the  commercial  privilege 
just  mentioned.     For  this  privilege,  being  a  contract 
with  Spain  and,   presumably,   part  consideration  for 
cession,   has  so  peculiar  a  claim  upon  our  national 
honor  that  its  rescission,  even  on  the  score  of  uncon- 
stitutionality,  would  place  us  in  a   disadvantageous 
light.      But  the  declaration  is  not  a  contract  with  any 
one — not  even  a  promise.     It  is  merely  a  reservation 
of  a  matter  of  domestic  interest  for  the  determination 
of  Congress,  and  its  qualification  or  annulment  by 
the  Supreme  Court  would  simply  illustrate  the  rule 

1  103  Federal  Rep.  72,  83. 


20  LAW  AND  POLICY  OF  ANNEXATION 

that  treaties  must  first  conform  to  the  Constitution, 
and  then,  if  possible,  to  the  expectations  of  their 
makers — a  rule  kept  in  mind  by  our  Peace  Commis- 
sion, whose  president  has  said  in  explanation  of  this 
reservation  :  "  It  was  thus  undertaken  to  give  Con- 
"  gress,  as  far  as  the  same  could  be  co7istitutionally 
"■done,  a  free  hand  in  dealing  with  these  new 
"territories  and  their  inhabitants."^ 

The  Ninth  Article  of  the  treaty  declares  also  that 
the  Spanish-born  residents  of  the  ceded  and  relin- 
quished territories,  who  shall  not  have  elected  to  re- 
tain their  old  allegiance  within  a  given  time,  shall  be 
deemed  to  have  adopted  "the  nationality  of  the  ter- 
"ritory  in  which  they  may  reside."  Does  this  im- 
press the  Philippines  and  Porto  Rico  with  nationalities 
distinguished  from  the  nationality  of  the  United 
States?  The  "  nationality  "  attributed  to  the  "relin- 
"quished"  island  of  Cuba  has  no  bearing  on  this 
question.  It  is  anomalous,  like  everything  relating  to 
the  status  of  this  oddly  situated  island.  Quite  differ- 
ent is  the  "nationality"  of  the  ceded  territories,  for 
these  being  duly  transferred  from  one  sovereign  to 
another,  their  character  is  determinable  by  simple 
principles ;  and  in  applying  them  we  are  not  embar- 
rassed by  the  variant  conceptions  of  "nationality" 
in  its  relation  to  people.^ 

The   national   territory  prefigured  by  the   Article 

1  Address  of  Hon.  William  R.  Day  before  the  Michigan  Bar 
Association,  May  23,   1900,  p.  9.     (The  itahcs  are  mine.) 

2  See  Boyd's  Wheaton,  International  Law,  3d  Ed.  30 ;  Maine, 
Early  History  of  Institutions,  74 ;  Savigny,  Conflict  of  Laws, 
Guthrie's  translation,  2d  Ed.  58;  Tupper,  Our  Indian  Protector- 
ate, 393;   Cogordon,  Za:  Nationalite,  2d  Ya\.  3-6. 


THE  ANNEXATION  OF  THE  PHILIPPINES     21 

can  be  nothing  else  than  land  belonging  to  a  state, 
and  when  I  assert  that  we  have  only  to  name  the 
state  which  is  the  sovereign  proprietor  of  the  soil 
in  order  to  name  its  nationality,  I  rely  upon  a  rule 
of  public  law  never  questioned  in  our  courts,  and 
generally  accepted  in  other  countries. 

"  Her  Majesty's  dominions,"  is  the  legal  descrip- 
tion of  that  empire  which  comprises  the  British 
Islands,  British  India,  and  the  colonies  of  every 
description,  and  every  part  of  these  dominions  is 
British  territory.  Commenting  on  an  act  of  Par- 
liament referrino;-  to  "foreiorn  dominions"  of  the 
Crown,  Chief  Justice  Cockburn  said:  "I  understand 
"  the  term  '  foreign  dominion '  to  mean  a  country 
"  which  at  some  time  formed  part  of  the  dominions  of 
"a  foreign  state  or  potentate,  but  which  by  conquest 
"or  cession  has  become  part  of  the  dominions  of  the 
"Crown  of  England";  and  Justice  Blackburn  con- 
curred in  this  opinion,^  An  Englishman  would 
ridicule  the  notion  that  any  part  of  the  Queen's  do- 
minions could  be  other  than  British  territory.  Even 
Australia  and  Canada,  so  nearly  independent  in  fact, 
have  no  nationality  of  their  own.  When  France 
formally  extends  her  sovereignty  over  new  terri- 
tory she  does  not  amuse  herself  by  pretending 
that  it  has  a  nationality  other  than  French.  After 
the  acquisition  of  Madagascar,  M.  Hanotaux  said  in 
the  Chamber  of  Deputies,  "  Madagascar  is  French 
"  territory."^ 

To  give  the  clause  in   question   a   constitutional, 

even    an    every-day    meaning,    it    must    be    under- 

1  Brown's  Case,  5  Best  and  Smith  280,  290. 
-  D Annee  Politique  (1897),  96. 


22  LAW  AND  POLICY  OF  ANNEXATION 

Stood  to  attribute  the  nationality  of  the  United 
States  to  PhiHppine  and  Porto  Rican  territory  : 
And  how  can  land  be  "  foreign  "  to  that  country  to 
which  it  is  linked  by  the  tie  of  nationality  ? 

The  Treaty  of  Paris  contains  no  express  declara- 
tion that  the  ceded  islands  are  incorporated  into  the 
United  States.  Nor  do  we  find  any  of  those  clauses 
recognizing  citizenship,  promising  statehood,  or  de- 
limiting new  national  boundaries  which  appear  in 
some  earlier  treaties  of  annexation.  But  these 
omissions  are,  like  certain  subordinate  clauses,  in- 
competent to  qualify  the  legal  effect  of  these  master- 
words  of  the  treaty:  "Spain  cedes  to  the  United 
"States  the  archipelago  known  as  the  Philippine 
"Islands,"  and  "cedes"  her  "sovereignty"  thereof; 
and  Porto  Rico  is  transferred  in  similar  terms.  By 
ratifying  this  treaty  the  United  States  have  accepted 
completely  the  sovereignty  of  the  islands,  as  I  under- 
stand the  law  of  the  matter ;  but  if  the  assent  of 
the  House  of  Representatives  be  really  essential  to  a 
perfect  acceptance,  as  some  members  asserted  in  a 
debate  on  the  Alaska  purchase,  it  has  been  given  by 
the  appropriation  of  $20,000,000  to  carry  out  the 
treaty,  or  if  this  payment  bound  the  House  in  re- 
gard to  the  Philippines  only,  the  House  has  cer- 
tainly accepted  Porto  Rico  by  legislating  for  it. 
Add  that  the  United  States  are  in  possession,  and 
it  is  plain  that  the  combination  of  law  and  fact 
impresses  upon  the  islands  the  nationality  of  our 
republic.  None  other  would  be  compatible  with  our 
sovereignty. 

Commenting  on  an  earlier  annexation  like  unto  this 
one  in  its  legal  aspects,  Chief  Justice  Marshall  said : 


THE  ANNEXATION  OF  THE  PHILIPPINES     23 

"The  usage  of  the  world  is,  if  a  nation  be  not  en- 
"  tirely  subdued,  to  consider  the  holding  of  conquered 
"territory  as  a  mere  military  occupation  until  its 
"fate  shall  be  determined  at  the  treaty  of  peace.  If 
"it  be  ceded  by  the  treaty,  the  acquisition  is  con- 
"  firmed,  and  the  ceded  territory  becomes  a  part  of  the 
"  natioji  to  which  it  is  annexed;  either  on  the  terms 
"stipulated  in  the  treaty  of  cession,  or  on  such  as  its 
"new  master  shall  impose."^ 

The  important  phrase  of  this  statement  is,  "the 
"  ceded  territory  becomes  a  part  of  the  nation  to  which 
"it  is  annexed."  The  additional  words,  "  either  on 
"the  terms  stipulated  in  the  treaty,  or  on  such  as  its 
"  new  master  shall  impose,"  do  not,  as  some  suppose, 
suggest  the  uncertainty  of  incorporation,  for  the  fact 
of  incorporation  is  established  by  the  accepted  ces- 
sion ;  they  merely  note  circumstances  that  may 
accompany  or  follow  incorporation.  The  "  new  mas- 
"  ter  "  may  impose  upon  its  possessions  any  terms,  that 
is  to  say,  any  laws  permitted  by  its  own  institutions. 
Articles  of  cession  may  contain  stipulations,  but  after 
the  cession  is  executed  non-performance  of  the  stipu- 
lations will  not  affect  the  title  of  the  acquiring  state 
in  its  own  courts.  For  example,  when  we  acquired 
California  we  agreed  to  pay  Mexico  $3,000,000  on 
the  ratification  of  the  treaty,  and  $12,000,000  in  an- 
nual instalments  of  $3,000,000,  but  a  default  in  the 
payments  would  not  have  affected  the  incorporation 
of  California  into  the  United  States ;  indeed,  Cali- 
fornia became  a  State  of  the  Union  before  all  the 
instalments  were  due. 

1  American  Insurance  Co.  v.  Canter,  i  Peters  511,  542.  (The 
italics  are  mine.) 


24  LAW  AND  POLICY  OF  ANNEXATION 

The  rule  that  ceded  land  is  incorporated  into  the 
domestic  territory  of  the  acquiring  state  is  a  con- 
sequence of  the  fact  that  it  falls  at  once  within 
the  territorial  jurisdiction  of  the  legislature,  and  all 
land  coming  under  this  jurisdiction  through  agree- 
ment or  conquest  or  occupation,  through  fair  means 
or  foul,  becomes  an  integral  part  of  the  acquir- 
ing state  because  of  its  subjection  to  the  sovereign 
body  that  makes  the  laws.  "What,  then,  is  the 
"extent  of  jurisdiction  which  a  State  possesses?" 
says  Chief  Justice  Marshall.  "We  answer,  without 
"  hesitation,  the  jurisdiction  of  a  State  is  coextensive 
"with  its  territory;  coextensive  with  its  legislative 
"  power  "  :  ^  And  Mr.  Justice  Story  said  :  "  The  laws 
"of  no  nation  can  justly  extend  beyond  its  own 
"  territories,  except  so  far  as  regards  its  own  citi- 
"zens."^  In  the  Goetze  case  Porto  Rico  is  called  a 
"  foreign  country,"  ^  yet  is  recognized  as  being  within 
the  full  jurisdiction  of  the  Federal  Government.  But 
because  it  is  within  this  jurisdiction  it  cannot  be 
"foreign." 

There  are,  indeed,  instances  of  the  subjection  of  two 
countries  to  one  sovereign,  but  these  are  not  in  point. 
Leopold  II  is  King  of  the  Belgians;  he  is  also  sover- 
eign of  the  Congo  State.  William  IV  was  King  of 
Hanover  as  well  as  of  Great  Britain,  and  it  is  note- 
worthy that,  while  there  was  no  fusion  of  states,*  Han- 
overians in  England  appear  to  have  been  British  sub- 
jects by  virtue  of  their  allegiance  to  the  person  who 

1  U.  S.  V.  Bevans,  3  Wheaton  336,  386. 

-The  Apollon,  9  Wheaton  362,  370. 

^  103  Federal  Rep.  72,  77. 

^  See  Lewis,  Government  of  Dependencies,  Lucas's  Ed.  90. 


THE   ANNEXATION  OF  THE  FJIILIPJTNES     25 

happened  to  be  King  of  Great  Britain.^  The  union 
in  these  and  similar  cases  is  wholly  personal,  in  no 
wise  resulting  from  any  connection  between  the  states 
themselves.  William  was  King  of  Hanover  by  descent 
from  that  Elector  of  Liineburgr  who  was  called  to  the 
English  throne  as  George  I  (the  electorate  having 
been  made  a  kingdom  in  18 14),  not  because  he  was 
King  of  Great  Britain  ;  and  the  reason  why  Queen 
Victoria  did  not  reign  in  Hanover  was  because  there 
females  are  barred  from  the  succession.  Leopold  is 
sovereign  of  the  Congo  State  by  special  arrange- 
ment, not  because  he  is  King  of  the  Belgians ;  and  it 
appears  that  he  may  devise  his  African  estate  by  will.^ 
No  one  will  pretend  that  the  United  States  and 
the  Philippines  are  two  countries  linked  in  a  personal 
union  by  virtue  of  one  man  being  the  chief  magis- 
trate of  each.  Such  a  pretense  would  ignore  the 
fact  that  our  President  governs  the  islands  solely  as 
the  chief  magistrate  of  the  United  States.  Besides, 
the  President  would  seem  to  be  constitutionally  in- 
capable of  exercising  a  personal  and  detached  sov- 
ereignty in  another  country,  whether  opportunity 
should  come  through  invitation,  inheritance,  or  con- 
quest: And  this  principle  is  not  violated  in  Cuba, 
where  the  President  oroverns  as  the  commander-in- 
chief  of  our  forces  in  military  occupation  of  a  foreign 
land.  The  theory  that  Congress  and  the  President 
may  together  govern  our  new  possessions  as  foreign 
countries  is  also  erroneous.  The  powers  granted 
to  Congress,  and  it  has  no  others,  are  conferred  for 

^  Stepney  Election  Case,  L.  R.  1 7  Q.  B.  D.  54.    See  Calvin's  Case, 
Coke's  Rep.  vii,  i,  on  the  Union  between  England  and  Scotland. 
^^\di.nQ]\a.xd,  EJ^tat  Indepcndeni du  Congo,  232. 


26  LAW  AND  POLICY  OF  ANNEXATION 

the  governing  of  the  United  States,  and  not  of  any- 
foreign  land.  It  is  "a  Congress  of  the  United 
"  States,"  not  of  the  United  States,  and  of  Porto  Rico, 
and  of  the  PhiHppines,  and  of  any  other  country  we 
may  wish  to  exploit  without  troubling  ourselves 
about  national  unity  and  equal  rights.  "By  the 
"Constitution,"  says  the  Supreme  Court,  "a  gov- 
"  ernment  is  ordained  and  established  for  the  United 
"  States  of  America,  and  not  for  countries  outside 
"of  their  limits."  ^ 

In  the  Goetze  case  the  Court  seeks  to  discredit  an 
incorporation  of  Porto  Rico  into  the  United  States  by 
asserting  that  it  would  disable  us  from  according  to 
that  island  (and  of  course  to  the  Philippines)  the 
practical  independence  which,  in  the  latter  country  at 
least,  is  desired  so  ardently  by  the  inhabitants.  "  If 
"we  cannot  hold  ceded  territory  without  bringing  it 
"under  the  Constitution,  as  an  integral  part  of  the 
"United  States,"  says  the  Court,  "then  we  cannot 
"  give  to  Porto  Rico  practical  independence, —  a  con- 
"stitution  and  laws  of  her  own,  taxes  of  her  own,  and 
"hold  merely  the  sovereignty,  confined,  perhaps,  to 
"control  of  foreign  relations.  If  Porto  Rico  is  still  a 
"foreign  country,  we  might  adopt  that  course."^ 

This  statement  seems  to  contemplate  a  protectorate, 
and  the  embarrassments  it  suggests  are  purely  ima- 
ginary. If  the  Court  means  that  territory  once  incor- 
porated can  never  be  handed  over  to  its  inhabitants, 
it  ignores  the  cessionary  powers  of  the  United  States. 
If  the  Court  means  that  Congress  may  maintain  a 
protected  state  within  the  limits  of  its  jurisdiction,  it 

1  Ross's  Case,  140  U.  S.  453,  464. 
- 103  Federal  Rep.  72,  82. 


/ 


THE  ANNEXATION  OF  THE  PHILIPPINES     27 

mistakes  the  nature  of  the  true  protectoral  relation, 
for  it  appears  that  in  theory  of  law  a  protected  state 
is  usually  deemed  to  lie  beyond  the  jurisdiction  of 
the  legislature  of  the  protecting-  state,  whose  inter- 
ests are  managed  by  its  executive  department  acting 
in  the  domain  of  foreign  relations.^ 

What  the  United  States  might  have  done  in  the 
Philippines  by  way  of  a  protectorate  is   now  a  be- 
lated question.     What  they  may  do  yet,  we  shall  con- 
sider later.^     At  present  we  are  concerned  to  know 
only  that  they  have  brought  the  islands  within  the 
jurisdiction   of  Congress:    And  no  argument  of  in-  | 
convenience   is  strong  enough  to  overcome  the  con- 
clusion that  land  thus  brought  within  the  complete       j 
and  exclusive  sovereignty  of  our  legislature  cannot       ) 
be  a  foreign  country,  but  must  be  part  of  the  United 
States  by  force  of  the  supreme  tenure  by  which  it  is^  ^ 
held. 

The  Philippines  are  not  only  within  the  United 
States  in  a  general  sense ;  they  are  not  distinguished 
organically  from  the  rest  of  our  territory.  Prior  to 
the  Treaty  of  Paris  the  common  property  of  the 
States  of  the  Union,  called  the  territory  of  the 
United  States,  comprised  New  Mexico,  Arizona, 
Oklahoma,  Indian  Territory,  Alaska,  Hawaii,  and  a 
number  of  islets.  To  these  are  now  added  the  Phil- 
ippines,  Porto  Rico,  and  Guam. 

These  several  districts  present  different  character- 

iSee  Lee-Warner,  The  Protected  Princes  of  India,  181,  249, 
263,  333.  Compare  Ilbert,  The  Government  of  India,  440,  note  3, 
on  the  West  African  protectorates. 

2  See  Chapter  V. 


28  LAW  AND  POLICY  OF  ANNEXATION 

istics.  All  are  not  governed  in  the  same  way. 
Some  will  become  States  or  parts  of  States ;  others 
will  not.  Some,  indeed,  have  been  acquired  under 
what  has  been  called  a  promise  of  ultimate  state- 
hood,^ but  these  are  not  distinguishable  in  law  from 
the  others,  for  the  admission  of  a  new  State  is  an  act 
of  policy  within  the  unlimited  discretion  of  Congress. 
Hawaii,  annexed  without  promise,  may  enter  the 
Union  before  Indian  Territory,  carved  out  of  that 
Louisiana  purchase  in  regard  to  which  the  promise 
was  made  nearly  a  century  ago.  All  are  held  by 
the  United  States  in  sovereign  proprietorship,  and 
although  we  unite  now  in  protesting  the  everlasting 
unfitness  of  the  Philippines  for  admission  to  the 
Union,  our  prejudice  does  not  prevent  their  being, 
in  point  of  law,  as  eligible  as  New  Mexico,  nor  would 
their  admission  by  the  next  generation  involve  a 
more  radical  and  surprising  reversal  of  prejudice  than 
the  admission  of  millions  of  negroes  to  political 
equality  by  the  last  generation.  All  the  districts  I 
have  named  are  organically  alike,  because  each  is 
owned  by  the  United  States  in  sovereign  proprietor- 
ship, and  when  this  likeness  is  determined  all  differ- 
ences in  condition,  location,  and  probable  destiny 
must  be  purely  circumstantial. 

1  See  New  Orleans  v.  De  Armas,  9  Peters  224,  235. 


CHAPTER    II 

THE    CONSTITUTION    AND    THE 
PHILIPPINES 

ARGUMENTS    AGAINST    THE    RULE    OF    THE 
CONSTITUTION    EXAMINED 

An  anxiety  to  rule  the  Philippines  free  from  con- 
stitutional restrictions  is  even  more  marked  than  the 
unwillingness  to  consider  them  as  part  of  the  United 
States.  Indeed,  this  unwillingness  is  due  to  the  ap- 
prehension that  throughout  all  this  territory  the  Con- 
stitution must  be  the  supreme  law ;  and  there  is  so 
keen  a  fear  that  we  shall  be  obliored  to  administer  the 

o 

Philippines  by  constitutional  rules  that  ingenious  argu- 
ments are  advanced  to  prove  that  the  Constitution  is 
really  quite  as  foreign  to  these  islands,  unquestion- 
ably ours,  as  though  they  belonged  to  another  nation. 
Prominent  among  the  arguments  are  these:  that 
the  Constitution  is  not  self-extending;  that  it  is  in- 
effective beyond  the  North  American  continent ;  that 
it  was  ordained  for  the  States  alone  ;  that  the  power 
of  the  United  States  over  annexed  territory  is  the 
same  as  that  possessed  by  other  nations. 

That  the  Constitution  is  Not  Self-exte7iding 

It  has  been  contended  that  the  Constitution  is  not  in 
the  Philippines  because  it  has  not  been  carried  there 

29 


30  LAW  AND  POLICY  OF  ANNEXATION 

by  an  act  of  Congress,  This  argument  attributes 
unlawful  powers  to  the  federal  legislature.  Congress 
is  the  creature  of  the  Constitution,  not  its  master ;  and 
is  bound  to  obey  it  wherever  it  is  supreme,  not  privi- 
leged to  decide  where,  within  the  jurisdiction  of  the 
United  States,  it  shall  be  supreme.  Probably  the 
argument  is  suggested  by  an  improper  estimate  of 
legislative  practice.  Certain  acts  of  Congress  organ- 
izinof  Territories  enact  the  law  of  the  Constitution 
for  the  new  district.  The  Supreme  Court  has  recog- 
nized such  legislation,  but  has  never  treated  it  as 
carrying  the  Constitution  to  a  new  field.  When 
Congress  authorizes  a  territorial  legislature  to  make 
laws  "not  inconsistent  with  the  Constitution  and 
"laws  of  the  United  States,"  it  affirms  "a  condition 
"necessarily  existing  in  the  absence  of  express  dec- 
"  laration  to  that  "effect."  ^  The  acts  in  question  are 
not  of  constitutional  dignity.  If  the  Constitution  is  in 
the  territory  by  its  own  force  they  affirm  an  actual 
condition  in  a  spirit  of  abundant  caution  ;  if  it  is  not, 
they  are  merely  repealable  laws  couched  in  the  phrase 
of  the  Constitution,  and  Congress  could  withdraw 
any  privilege  granted  by  the  so-called  extension 
of  the  Constitution.  Of  all  the  heresies  that  em- 
barrass the  fair  discussion  of  the  Philippine  ques- 
tion few  are  more  mischievous  than  the  notion  that 
Congress  is  competent  to  grant  and,  if  to  grant,  to 
take  away  or  withhold  the  Constitution  at  pleasure. 
And  the  President  and  Senate,  acting  as  a  treaty- 
making  body,  are  quite  as  incompetent  to  play  with 
the  organic  law  from  which  their  existence  and  their 
powers  are  derived. 

1  Maynard  v.  Hill,  125  U.  S.  190,  204. 


THE   CONSTITUTION  AND   THE  PHILIPPINES  zx 

Mr.  Webster  said  in  the  Senate  on  February  24, 
1849 :  "  1  do  not  say  that  while  we  sit  here  to  make 
"  laws  for  these  Territories  we  are  not  bound  by 
"every  one  of  the  great  principles  which  are  in- 
"  tended  as  general  securities  for  public  liberty.  But 
"they  do  not  exist  in  Territories  till  introduced  by 
"the  authority  of  Congress."^ — Hence  the  sugges- 
tion that  the  Constitution  will  not  be  effective  in  the 
Philippines  until  Congress  shall  legislate  for  them. 
This  suggestion  is  wholly  impracticable,  whether  it 
be  predicated  upon  casual  enactments,  or  upon  a 
statute  establishing  a  civil  government.  Even 
Webster's  name  cannot  dignify  the  proposition  that 
constitutional  guaranties  demand  respect  only  when 
the  establishment  of  civil  order  under  the  auspices  of 
Congress  renders  them  less  likely  to  be  needed.  A 
monstrous  doctrine  indeed  that  the  President  may 
lawfully  rule  United  States  territory  during  the  inac- 
tion of  Congress  free  from  the  restraints  which,  it  is 
conceded,  affect  both  himself  and  Congress  after  the 
territory  shall  have  been  duly  organized !  Even  a 
Kine  of  Enofland  cannot  do  so  much,  for  as  Lord 
Mansfield  said:  "If  the  King  (and  when  I  say  the 
"  King  I  always  mean  the  King  without  the  concur- 
"  rence  of  Parliament)  has  a  power  to  alter  the  old 
"and  to  introduce  new  laws  in  a  conquered  country, 
"this  legislation  being  subordinate,  that  is,  subor- 
"dinate  to  his  own  authority  in  Parliament,  he 
"cannot  make  any  new  change  contrary  to  funda- 
"  mental  principles."^ 

It  is  noteworthy  that  they  who  deny,  consistently, 

1  Curtis's  Life  of  Webster,  ii,  366. 
-  Campbell  v.  Hall,  Cowper  204,  209. 


32  LAW  AND   POLICY  OF  ANNEXATION 

the  efficiency  of  the  Constitution  in  our  new  posses- 
sions still  maintain  this  opinion  in  regard  to  Porto 
Rico,  although  Congress  has  prescribed  a  govern- 
ment for  it.  Indeed,  parts  of  the  Porto  Rico  Govern- 
ment Act  itself  contemplate  the  exclusion  of  the 
Constitution  from  the  island. 

The  foregoing  arguments  proceed  upon  the  theory 
that  the  Constitution  can  have  no  expansive  force  of 
its  own,  but,  like  the  generality  of  statute  law,  must 
gain  efficiency  in  annexed  territory  through  some  act 
supplementary  to  the  act  of  annexation.  This  theory 
is  unsound.  The  rano-e  of  the  Constitution  is  not  a 
political  question,  determinable  by  the  President  or 
Congress.  These  servants  of  the  Constitution  can- 
not decide  in  what  circumstances  or  places  its  rules 
shall  bind  them.  The  range  of  the  Constitution  is  a 
judicial  question,  determinable  by  construction  of  the 
instrument,  and,  did  it  not  broaden  with  the  expansion 
of  the  United  States,  nothing  but  an  amendment 
could  extend  it  beyond  their  original  boundaries,  ex- 
cept, perhaps,  the  admission  of  a  new  State. 

The  theory  that  the  Constitution  has  a  force  of  its 
own  is,  of  course,  subordinate  to  the  primary  consid- 
eration that  a  living  constitution  presupposes  a  living 
government.  The  Constitution  framed  by  our  Fed- 
eral Convention  could  not  vitalize  itself  It  was  an 
abstraction  until  the  States  launched  the  orovernment 
it  contemplated,  but  then  it  became  the  inspiration 
and  the  guide  of  this  government. 

The  theory  of  the  self-extending  force  of  certain 
provisions  of  the  Constitution  must  be  distinguished 
from  a  question  of  constitutional  construction  which, 


IHE    CONSJITUTION  AND    THE  PHILIPPINES  ^t, 

sometimes,  has  been  supposed  to  discredit  it ;  ^  namely, 
whether  a  provision  be  so  phrased  as  to  require 
legislative  action  to  make  it  efficient  anywhere.  To 
illustrate  the  distinction  between  this  question  and  the 
theory  of  self-extension,  and  also  a  divergence  of  opin- 
ion in  answering  the  question,  I  cite  a  once  famous 
disagreement  between  federal  and  State  courts.  The 
Constitution  of  the  State  of  Mississippi,  adopted  in 
1832,  contained  this  provision:  "The  introduction 
"  of  slaves  into  this  State  as  merchandise,  or  for  sale, 
"shall  be  prohibited  from  and  after  the  first  day  of 
"May,  1833."  The  Supreme  Court  of  the  United 
States  decided  that  the  provision  did  not  execute  it- 
self, but  required  action  by  the  legislature,  especially 
the  imposition  of  penalties  for  violation,  before  it 
should  become  effective.^  The  State  court,  however, 
refused  to  follow  the  Supreme  Court.  It  declared 
the  provision  to  be  self-executing,  upon  the  following 
theory  of  constitutional  obligation :  The  Constitu- 
tion, said  the  Court,  "  is  but  the  frame  or  skeleton 
"  of  a  government,  containing  the  general  outline, 
"  leaving  the  detail  to  be  filled  up  in  subordination 
"and  auxiliary  to  the  essential  and  fundamental  prin- 
"ciples  thereby  established.  But  it  is  not  on  that 
"account  the  less  binding.  It  is  from  its  very  nature 
"and  object  the  supreme  law  of  the  land,  fixed  and 
"  unalterable,  except  by  the  power  that  made  it.  It 
"contains  only  certain  great  principles  which  are  to 
"  control  in  all  legislation,  and  extend  through  the 
"whole  body  politic.  These  principles  are  of  them- 
"  selves  laws.     Constitutions  do  not  usually  profess 

iSee  Benton,  Thirty  Years'  View,  II,  p.  714. 
2  Groves  v.  Slaughter,  1 5  Peters  449. 


34  LAW  AND  POLICY  OF  ANNEXATION 

"to  insure  obedience  by  prescribing  penalties;  they 
"  merely  declare  the  rule  or  establish  the  principle, 
"which,  being  paramount,  makes  void  whatever  is 
"  repugnant  to  it.  Its  mandates  or  principles  bind 
"  by  a  moral  power.  ,  .  .  General  principles,  thought 
"  to  be  essential  to  a  free  government,  are  declared ; 
"and  (emanating  from  the  sovereign  authority)  that 
"mere  declaration  imparts  to  them  all  the  force  of  a 
"  supreme  law."^ 

We  are  not  concerned  with  the  merits  of  this  dis- 
agreement, though  I  think  the  State  court  was  in  the 
right.  At  all  events,  its  masterly  exposition  of  the 
obligatory  force  of  constitutional  principles  generally 
is  especially  applicable  to  the  Federal  Constitution, 
whose  principles,  with  few  exceptions,  do  not  belong 
in  the  second-rate  class  of  recommendations  depend- 
ing for  obligation  upon  the  pleasure  of  the  legislature, 
but  are  themselves  laws  enforcible  by  the  courts. 

That  the  Constitution  is  not  Effective  Beyorid  the 
North  America7i  Co7iti7ient 

In  the  annual  report  of  the  Secretary  of  War  for 
1899  we  read  :  "The  people  of  the  islands  have  no 
"right  ...  to  assert  a  legal  right  under  the  pro- 
"  visions  of  the  Constitution,  which  was  established 
"  for  the  people  of  the  United  States  themselves,  and 
"  to  meet  the  conditio7is  existing  upon  this  co7itinent " ;  Ij 
and,  further,  that  the  Porto  Ricans  cannot  demand 
that  tariff  duties  shall  be  uniform  throughout  Porto 
Rico  and  our  mainland,  because  the  constitutional 
provision  of  uniformity  was   "solely  adapted  to  the 

'  JJrien  v.  Williamson,  8  Mississijjpi  14,  17. 


THE    CONSTITUTION  AND    THE  FIJILIPFINES  35 

'^conditions  existing  in  the   United  States  upon  the 
''continent   of  North   America."'^    In    other   words, 
the  Constitution  is  supposed  to  have  been  ordained 
for  the  present  and  future  dominions  of  the  United 
States  upon  the  continent  of  North  America,  and  no- 
where else.     The  Preamble,   it  is  true,   entitles  our 
republic    "The    United    States    of  America,"  but    I 
understand  the  suffix  to  be  merely  a  descriptive  term 
aptly  chosen  at  the  time,  and  not  a  legal  restriction ;  y    \, 
otherwise  we  could   not  have  lawfully  annexed  the 
Philippines.     This  "continental"  theory  is  not  even 
derived  from  the  Preamble,  for  it  restricts  the  Consti- 
tution to  North  America.     Upon  what  basis  of  fact 
is  a  Constitution  conceded  to  be  adapted  to  the  di- 
verse physical,  social,  and  economic  conditions  of  our 
continental  domain    deemed  to   be   essentially  unfit 
for  Porto  Rico  ?     Upon  what  principle  of  law   can 
there  be  read  into  the  Constitution  this,  or  any  other 
purely  geographical  limitation  on  its  authority  ? 

That  the  Constitution  was  Ordained  for  the 
States  Alone 

The  most  specious  argument  against  the  rule  of     /   / 
the   Constitution  in   the   Philippines   is   that  it   was 
ordained  for  the  States  of  the  Union  alone. 

This  proposition  was  advanced  in  the  debates  in 
Congress  on  the  acquisition  of  Louisiana  in  1803, 
and  on  the  question  of  slavery  in  California  in  1849  ^ 
it  has  been  resurrected  in  recent  discussions ;  but  it 
has  never  grained  even  the  consideration  that  the 
common  assent  of  statesmen  might  give  it  betore  the 

courts. 

1  The  italics  are  mine. 


2,6  LAW  AND  POLICY  OF  ANNEXATION 

The  proposition  lacks  the  support  of  precedent.  If 
the  theory  that  the  Constitution  is  operative  in  the 
States  only  has  been  consciously  applied  in  adminis- 
tering outlying  territory  its  applications  have  been 
infrequent  and,  presumably,  inexcusable.  There  is 
no  warrant  for  the  boast  that  in  denying  the  Con- 
stitution to  our  new  possessions  the  Administration 
adds  weight  to  a  practical  construction  of  the  organic 
law  which  the  courts  should  respect. 

The  present  policy  of  definitely  excluding  new  ter- 
ritory from  the  great  customs  district  of  the  republic 
violates  precedent.-^ 

Regarding  the  general  guaranties  of  the  Constitu- 
tion in  annexed  territory,  we  find  that  in  the  case  of 
Louisiana  while  the  inhabitants  complained  that  self- 
government  was  not  accorded  at  once,  and  that 
American  rulers  did  not  understand  the  local  laws 
they  were  expected  to  administer,  our  government 
did  not  deny  the  efficacy  of  the  guaranties,  and  the 
Supreme  Court  practically  recognized  their  obligation 
in  Bollman's  case.^ 

General  Wilkinson  arrested  Bollman  in  Orleans 
Territory  (Louisiana)  upon  a  charge  of  treason,  and 
sent  him  to  Washington  for  trial,  all  without  civil 
warrant :  The  Supreme  Court  discharged  him ;  and 
Judge  Story  termed  the  arrest  "a  very  gross  viola- 
tion of  the  Fourth  Amendment."^ 

Whatever  we  did  in  Florida  before  we  took  pos- 
session under  the  completed  treaty  of  cession  was 
done  in  a  foreign  land,  and  so  is  immaterial  to  this  in- 
quiry.    After  the  cession  General  Jackson  was  com- 

'  See  infra,  p.  79.  ^  Commentaries,  Sec.  1902,  Note. 

'^  4  Cranch  75. 


THE   CONSTITUTION  AND   THE  PHILIPPINES  37 

missioned,  by  the  authority  of  Congress,  "  with  all 
"the  powers  and  authorities  "  theretofore  enjoyed  by 
the  Spanish  rulers.^  Jackson  was  not  affected,  how- 
ever, with  a  Spanish  officer's  irresponsibility  in  regard 
to  our  Constitution,^  though  he  is  said  to  have  de- 
clared that  his  powers  were  those  "  that  no  one  under 
"  a  republic  ought  to  possess  ";  ^  and  if  during  his  brief 
term  he  was  justly  chargeable  with  arbitrary  actions, 
they  are  not  evidence  of  a  general  policy. 

The  obligatory  force  of  the  Constitution  in  Califor- 
nia was  maintained  by  Polk's  Administration,  whose 
position  was  attacked  by  Webster  and  Benton  be- 
cause Calhoun  assumed  that  it  secured  the  right  to 
take  slaves  into  the  new  Territory.  If  Calhoun  argued 
for  the  Constitution  in  California  with  the  expecta- 
tion of  extending  the  area  of  slavery,  he  at  least  con- 
templated the  attribution  of  its  rights  to  white  men, 
while  these  rights  are  now  withheld  from  all  people  in 
the  islands. 

I  am  not  aware  of  any  act  of  the  Government 
denying  the  authority  of  the  Constitution  in  Alaska. 

A  keen  search  for  arbitrary  acts  of  the  Federal  Gov- 
ernment in  unorganized  territory,  or,  for  that  matter, 
in  the  States,  may  not  be  wholly  unsuccessful ;  but  the 
search  is  a  discreditable  waste  of  time  when  its  pur- 
pose is  to  parade  them  for  our  commendation.  Such 
acts  are  transgressions  against  the  republic,  and  their 
approbation  as  standards  of  conduct  is  a  repulsive 
feature  of  the  attack  now  being  made  upon  constitu- 
tional government. 

1  21  Niles  Weekly  Register  135. 

-See  the  citation  from  Pollard  v.  Hagan,  ififra,  p.  131. 

3  21  Niles  Weekly  Register  136. 


'^  56279 


28  LAW  AND  POLICY  OF  ANNEXATION 

Replying"  to  the  assertion  that  the  theory  of  the 
restriction  of  the  Constitution  to  the  States  has  the 
sanction  of  judicial  opinion,  I  am  justified  in  stating 
that  it  is  not  encouraged  by  a  single  dictum  of  the 
Supreme  Court,  hardly  countenanced,  indeed,  by  a 
questioning  phrase,  and  has  been  repeatedly  dis- 
credited in  that  seat  of  authority.^ 

In  Callan  v.  Wilson,  the  Supreme  Court  main- 
tained the  law  of  the  Constitution  beyond  the  States 
in  the  only  case  where  an  act  of  Congress  disregard- 
ing it  was  forced  upon  the  Court's  attention.  The 
suggestion  that  the  principleof  this  decision  is  limited 
to  the  District  of  Columbia,  to  which  the  act  applied, 
is  refuted  in  the  following  paragraph  of  the  opinion : 
"In  Reynolds  v.  United  States,  98  U.  S.  145, 
"  154,  it  was  taken  for  granted  that  the  Sixth 
"Amendment  of  the  Constitution  secured  to  the 
"people  of  the  Territories  the  right  of  trial  by  jury 
"  in  criminal  prosecutions ;  and  it  had  been  previ- 
"ously  held  in  Webster  v.  Reid,  11  Howard  437, 
"460,  that  the  Seventh  Amendment  secured  to  them 
"  a  like  right  in  civil  actions  at  common  law.^  We 
' '  cannot  think  that  the  people  of  this  District  have,  in 
"that  regard,  less  rights  than  those  accorded  to  the 
"people  of  the  Territories  of  the  United  States."^ 
The  notion  that,  because  the  District  of  Columbia 
once  belonged  to  States  which  ceded  it  for  a  Federal 

1  See  also  the  opinion  of  Lochren,  District  Judge,  in  Ex  parte 
Ortiz,  100  Federal  Rep.  955. 

^See  also  American  Publishing  Co.  v.  Fisher,  166  U.  S.  464; 
Springville  v,  Thomas,  166  (J.  S.  707;  Thompson  v.  Utah,  170 
U.  S.  343;  National  Bank  v.  Guthrie,  173  U.  S.  528,  537;  Black 
V.  Jackson,  177  U.  S.  349,  363. 

•'  Callan  v.  Wilson,  127  U.  S.  540,  550. 


THE   CONSTITUTION  AND    THE  PHILIPPINES  39 

capital,  its  people  enjoy  constitutional  rights  denied 
to  the  people  of  the  Territories  is  quite  as  fanciful  as 
the  conceit  of  the  early  days  of  the  Civil  War,  that  if 
Maryland  should  secede  she  would  carry  the  Federal 
capital  with  her  by  operation  of  law  !  If  the  District 
is  held  by  the  United  States  subject  to  a  possibility 
of  reverter  for  condition  broken,  it  is  too  remote  to 
affect  the  status  of  the  inhabitants.  There  is  no 
reason  of  policy  why  they  should  be  preferred  to  the 
people  of  Oklahoma,  nor  any  of  constitutional  law, 
for,  as  Chief  Justice  Marshall  says,  the  District  and  a 
Territory  "  may  differ  in  many  respects,  but  neither 
"of  them  is  a  State,  in  the  sense  in  which  that  term 
"  is  used  in  the  Constitution."^  Each  has  been  called 
a  state,  however,  in  the  primitive  sense  of  being  an 
organized  community,^  and  each  has  been  ranked 
amone  the  States  of  the  Union  in  order  to  effectuate 
a  treaty  pledge.^ 

Territories  have  been  also  described  as  "depen- 
"dencies,"*  perhaps  not  an  inaccurate  description 
of  districts  whose  communities  lack  all  attributes  of 
sovereignty.  With  better  reason  they  are  likened 
to  the  counties  of  a  State,^  and  to  "  organized  munici- 
"  palities,"  ^  and  it  is  quite  as  impossible  for  the  repub- 
lic, as  for  a  State,  to  withhold  from  the  subordinate 
districts  within  its  domain  the  protection  of  its 
Constitution. 

1  New  Orleans  v.  Winter,  i  Wheaton  91,  94. 
•     2Talbott  V.  Silver  Bow  County,  139  U.  S.  438,  448. 

^  Geofroy  v.  Riggs,  133  U.  S.  258. 

*  Snow  V.  U.  S.,  18  Wallace  317,  320. 

^National  Bank  v.  County  of  Yankton,  loi  U.  S.  129,  133. 

«  Geofroy  v.  Riggs,  133  U.  S.  258,  268  ;  see  also  Utter  r.  Frank- 
lin, 172  U.  S.  416,  423. 


40  LAW  AND  POLICY  OF  ANNEXATION 

Among  the  Justices  who  have  recognized  the  Con- 
stitution as  having  a  broader  dominion  than  the  States 
are  Chief  Justices  Marshall/  Taney,^  Waite,^  and 
Fuller,*  and  Justices  Curtis,^  Miller,^  Bradley/  Har- 
lan/ Matthews/ Gray/" Brewer/^  Field/^ and  Clifford.^^ 
This  consensus  of  opinion  represents  every  theory 
of  constitutional  interpretation  that  has  been  ex- 
pounded in  the  Supreme  Court 

Several  decisions  cited  in  opposition  are  readily 
distinguished.  In  Benner  v.  Porter/*  the  Court  held 
that  territorial  courts  are  not  courts  of  the  United 
States  within  the  meaning  of  the  judiciary  clauses  of 
the  Constitution.  This  decision  simply  affirms  the 
absolute  discretion  of  Congress  in  creating  the  ma- 
chinery of  territorial  government.  The  Mormon 
Church  case  ^'  involved  an  act  of  Congress  applying 
to  educational  uses  certain  property  of  the  dissolved 
Corporation  of  Latter-day  Saints  in  Utah  Territory. 

'  Loughborough  v.  Blake,  5  Wheaton  317,  324. 
-  Strader  v.  Graham,  10  Howard  82,  96;    Scott  v.  Sandford,  19 
Howard  393,  449. 

3  National  Bank  v.  County  of  Yankton,  loi  U.  S.  129,  133. 

4  Mormon  Church  v.  U.  S.,  136  U.  S.  i,  67. 

^  Scott  V.  Sandford,  19  Howard  393,  614,  624. 
6  Slaughter-house  Cases,  16  Wallace  36,  72. 
"'  Mormon  Church  v.  U.  S.,  136  U.  S.  i,  44. 
8  McAllister  v.  U.  S.,  141  U.  S.  174,  188. 
^  Murphy  v.  Ramsey,  114  U.  S.  15,  44. 
1"  Capital  Traction  Co.  v.  Hof.,  174  U.  S.  i. 
11  Fong  Yue  Ting  v.  U.  S.,  149  U.  S.  628. 
'-  Maynard  v.  Hill,  125  U.  S.  190,  204. 
'•'  "The  City  of  Panama,"  10 1  U.  S.  453,  460. 
^•^  9  Howard,  242. 

15  136  U.  S.    I. 


THE    CONSTITUTION  AND    THE  PHIIIPPINES  a,\ 

Three  Justices  declared  the  act  to  be  invalid  because 
spoliative,  thus  affirming  their  conviction  of  the 
authority  of  the  Constitution  in  the  Territory.  The 
Court  recognized  the  obligation  of  the  constitutional 
guaranties  in  Utah,  but  held  that  the  disposition  of 
the  property  was  justified  by  the  law  of  charitable 
uses.  In  Ross's  case,^  the  petitioner  had  been  con- 
victed of  murder  before  our  consular  court  in  Japan. 
The  conviction  was  affirmed,  though  the  act  of  Con- 
gress authorizing  the  court  under  a  treaty  with  Japan 
did  not  provide  for  presentment  and  trial  by  jury. 
The  judge  of  the  court  was  an  American,  yet  it  was 
not,  from  the  constitutional  standpoint,  essentially 
different  from  a  tribunal  of  mixed  nationality  like  the 
one  in  Egypt,  and  in  either  case  there  is  no  question 
of  carrying  our  Constitution  to  a  foreign  land,  where, 
as  the  Supreme  Court  said,  "it  can  have  no  opera- 
"tion."  Usually,  such  tribunals  are  created  for  the 
protection  of  Christians  in  non-Christian  countries. 
As  they  exist,  in  theory  of  law,  by  the  permission  of 
the  local  sovereign,  albeit  the  permission  is  commonly 
extorted,  their  jurisdiction  is  entirely  a  matter  of 
arrangement.  As  they  dispense  justice  in  a  strange 
environment,  their  procedure  is  largely  a  matter  of 
discretion.  Our  former  privilege  in  Japan  does  not 
interpret  our  present  duty  in  the  Philippines ;  for  we 
claim  territorial  sovereignty  over  the  islands,  not 
extraterritorial  privilege,  the  whole  authority  of  the 
United  States,  not  a  fragment  of  authority  wrung 
from  a  foreign  government. 

The  textual  criticism  by  which    territory  beyond 

1  140  U.  S.  453. 


42  LAW  AND  POLICY  OF  ANNEXATION 

the  States  is  read  out  of  the  Constitution,  upon  the 
theory  that  the  "  United  States "  covered  by  the 
Constitution  comprises  the  States  of  the  Union  alone, 
is  as  harsh  and  artificial  as  that  of  the  most  strict 
constructionists  of  the  old  school,  whom  the  new- 
school  resembles  in  denying  the  national  and  com- 
mercial unity  of  all  who  owe  allegiance  to  the 
republic.  And  the  new  school  is  subject  to  a  re- 
proach not  imputable  to  the  old  :  It  reverses  the 
great  rule  of  the  common  law  by  making  every  pre- 
sumption against  the  individual  and  in  favor  of  the 
state,  for  it  attributes  to  the  Federal  Government 
absolute  dominion  over  all  persons  and  property 
lying  beyond  what  it  is  pleased  to  call  the  "  United 
"  States  "  of  the  Constitution.  The  "United  States," 
whose  people  framed  the  Constitution,  and  retained 
for  themselves  and  the  States  all  powers  not  dele- 
gated to  the  Federal  Government  are,  unquestionably, 
the  States  of  the  Union  only.  These  States  and 
their  people  wield  the  whole  political  power  of  the 
republic.^  Unquestionably  the  Constitution  con- 
tains clauses  relating  exclusively  to  the  States  either 
in  terms  or  by  necessary  implication.  Other  clauses 
embody  principles  of  universal  value  and  unre- 
stricted range,  and  these  are  operative  throughout 
the  larger  "  United  States"  described  by  Marshall  as 
"  our  great  republic,  which  is  composed  of  States  and 
"  Territories.  The  District  of  Columbia,  or  the  Terri- 
"  tory  west  of  the  Missouri,  is  not  less  within  the 
"United  States,  than  Maryland  or  Pennsylvania."^ 

^  See  infra,  \).  70. 

2  Loughborough  v.  Blake,  5  Wheaton  317,  319. 


THE    CONSTITUTION  AND    THE  PIIIIII>PINES  az 

That  the  Power  of  the  United  States  over  Annexed 
Territory  is  the  Same  as  that  Possessed  by  Other 
Nations 

The  most  popular  arg-ument  for  withholding  the    , 
Constitution  from  the  Philippines  is  that  the  United   { 
States  are  equal  to  any  other  nation  in  power  and   I 
resource,  and,  therefore,  are  competent  to  deal  with 
the  islands  as  another  nation   might  under  the  cir- 
cumstances.     Deferring  to  this  opinion  for  the  mo- 
ment, let  us  inquire  whether  nations  whose  rank  and 
experience   invite,   apparently,   our    profitable    study 
of  their  expansion  policies  are  accustomed  to  do  what 
we  are  urged  to  do ;   namely,  to  divide  national  terri- 
tory into   sections   distinguished  organically  by  the 
presence  of  effective  constitutional  restraints  on  gov- 
ernmental power  in  the  one,  and  the  absence  of  such 
restraints  in  the  other. 

The  colonial  policies  of  Germany,  Italy,  and  Japan 
are  in  the  experimental  stage ;  and  we  shall  not  find 
a  model  in  the  exploitation  of  Java  by  Holland. 

Constitutional  questions,  in  the  Western  sense,  are 
practically  unknown  in  Russia,  whose  inhabitants  are 
classified  as  the  Czar — and  the  others.  Each  acquisi- 
tion of  territory  means  simply  the  enlargement  of  the 
Czar's  dominions  and  the  increase  of  his  subjects. 

The  first  French  republic  professed  to  carry  the 
French  ideals  of  liberty,  equality,  and  fraternity  to 
its  neighbors  in  Europe,  and  the  present  republic 
affects  the  same  office  in  its  colonies.  It  is  not 
material  to  determine  the  value  of  these  ideals,  or 
how  nearly  they  are  realized.      It  is  sufficient  for  our 


44  LAW  AND  POLICY  OF  ANNEXATION 

purpose  to  know  that  the  French  Constitution  is  not 
restricted,  in  theory,  to  France  in  Europe.  And 
Algeria,  French  India,  Mauritius,  Reunion,  and 
Guadeloupe,  in  sending  senators  and  deputies  to  the 
national  legislature,  enjoy  political  rights  denied  to 
the  colonies  of  Great  Britain  and  the  territories  of 
the  United  States. 

The  colonial  policy  of  Great  Britain  is  especially 
commended  for  our  imitation,  but  it  will  appear  that 
organic  equality  is  the  constitutional  theory  in  the 
British  Empire,  and  not  discrimination.  For  the  will 
of  Parliament  is  the  oreanic  law  of  the  British  Em- 
pire,  whose  parts  are  united  by  their  common  subjec- 
tion to  it,  and  Parliament  presides  over  the  scattered 
lands  and  the  polyglot  people  with  equal  and  unfet- 
tered power.  England  and  the  Gold  Coast  are  in- 
tegral parts  of  this  empire :  ^  The  citizen  of  London 
and  the  native  of  India  are  on  an  equal  footing  before 
an  authority  that  acknowledges  no  legal  constraint. 
The  opportunist  colonial  policy  so  cleverly  displayed 
in  the  administration  of  the  Queen's  dominions  be- 
yond  the  sea  is  but  a  manifestation  of  a  force  quite 
as  supreme  in  the  British  Islands.  The  organic  law 
of  the  United  States  is  the  written  Constitution,  and 
so  long  as  its  broad  guaranties  run  throughout  the 
national  territories  all  the  people  are  equal  before 
the  law  —  an  equality  in  harmony  with  the  British 
theory.  But  were  these  guaranties  circumscribed, 
all  would  not  be  equal ;  there  would  be  the  law  of 
the  Constitution  for  some,  the  pleasure  of  Congress 
for  others  —  an  inequality  in  marked  contrast  to  the 
British  theory. 

'  See  supra,  p.  21. 


THE    CONSTITUTION  AND    THE  TIJIUJ'FINES  a,t^ 

Our  survey  of  foreign  policy  is  of  some  practical 
interest  inasmuch  as  it  shows  that  the  subjection  of  our 
new  possessions  to  the  organic  law  is  not  in  line  with 
the  best  precedents,  but,  more  importantly,  it  should 
remind  us  how  radically  our  government  differs  from 
the  governments  of  Europe,  including  that  of  Great 
Britain.  The  assertion  that  the  American  people 
are  a  nation  like  the  people  of  the  Piritish  Empire  is 
true  in  the  sense  that  there  is  an  ultimate  authority 
in  the  republic  substantially  similar  to  that  of  the 
British  nation.  It  is  false  in  the  suggested  sense 
that  this  authority  is  lodged  in  Congress.  Parlia- 
ment is  the  British  nation  for  every  purpose.  Con- 
gress is  the  American  nation  only  for  the  purpose  of 
exercising  the  powers  delegated  in  the  Constitution, 
and  a  brief  consideration  of  the  meaning  and  office 
of  this  Constitution  will  demonstrate  the  incom- 
petency of  Congress  to  rule  territory  in  disregard  of 
its  provisions. 

The  Constitution  is  the  foundation  of  the  United 
States.  Destroy  it,  and  the  United  States  would  dis- 
appear,—  the  name  and  the  thing  alike, — leaving 
forty-five  sovereign  States,  each  entitled  to  a  share  in 
outlying  territory.  "  The  United  States  of  America  " 
is,  in  short,  an  artificial  name  given  by  the  written 
law  which  created  the  thinor  it  describes.  This  iden- 
tification  of  our  Constitution  with  our  country  is 
strikingly  illustrated  in  the  phrasing  of  the  con- 
stitutional oath  of  office.  It  is  customary  in  all 
countries  to  require  of  officials  a  formal  profession  of 
fidelity  to  the  state  they  serve,  and  this  is  made 
to  the  person  or  thing  that  in  local  usage  most  closely 
represents  the  state.     In  accordance  with  this  custom, 


46  LAW  AND  POLICY  OF  ANNEXATION 

every  official  in  the  United  States,  from  the  President 
down,  is  bound  by  oath  or  affirmation  to  support  the 
Constitution,  and  only  the  Constitution.  And  it  is 
noteworthy  that  while  some  provisions  of  the  Porto 
Rico  Government  Act  are  drawn,  seemingly,  as 
though  the  Constitution  were  not  effective  in  the 
island,  every  official  mentioned  in  the  act  is  required 
to  take  the  constitutional  oath.  This  requirement  is 
essential,  but  its  presence  discredits  the  theory  of 
the  inefficiency  of  the  Constitution  in  Porto  Rico,  be- 
cause he  who  swears  to  support  it  is  entitled  to  its 
protection. 

The  Constitution  is  the  ultimate  source  of  author- 
ity for  every  lawful  act  of  the  Federal  Government. 
The  power  behind  the  act  may  be  expressed ;  it  may 
be  plainly  implied ;  it  may  be  claimed  by  implication 
so  refined  as  to  provoke  conflicts  of  opinion  :  but  it 
must  be  derived  from  the  organic  law.  This  conclu- 
sion has  been  constantly  affirmed  by  the  Supreme 
Court.  It  is  the  very  corner-stone  of  our  law  of  con- 
stitutional interpretation.  And,  as  the  Government 
must  rely  on  the  enabling  provisions  of  the  Constitu- 
tion for  authority  to  act  at  all,  it  must  rule  its  conduct 
according  to  the  restraining  provisions.  Comment- 
ing on  government  in  general,  and  our  own  in  par- 
ticular. Chief  Justice  Marshall  said:  "This  original 
and  supreme  will  [of  the  people]  organizes  the  gov- 
"  ernment,  and  assigns  to  different  departments  their 
"  respective  powers.  It  may  either  stop  here,  or  es- 
"  ta1)lish  certain  limits  not  to  be  transcended  by  those 
"  departments. 

"  The  government  of  the  United  States  is  of  the 


THE   CONSTITUTION  AND   THE  PHILIPPINES  47 

"latter  description.  The  powers  of  the  legislature 
"are  defined  and  limited;  and  that  those  limits  may 
"not  be  mistaken,  or  forgotten,  the  Constitution  is 
"  written."^ 

The  immeasurable  difference  between  the  limited 
powers  of  Congress  and  the  omnipotence  of  Parlia- 
ment is  recognized  by  our  courts,^  and  it  cannot  be 
too  strongly  emphasized  at  this  moment  when  a  sud- 
den admiration  for  English  colonial  policy  has  begot- 
ten a  desire  to  imitate  it. 

"The  powers  of  the  British  Parliament,"  says  Mr. 
Justice  Harlan,  "furnish  no  test  for  the  powers  that 
may  be  exercised  by  the  Congress  of  the  United 
States.  Referring  to  the  difficulties  confronting 
the  Convention  of  1787  which  framed  the  present 
Constitution  of  the  United  States,  and  to  the  pro- 
found differences  between  the  instrument  framed  by 
it  and  what  is  called  the  British  Constitution,  Mr. 
Bryce,  an  English  writer  of  high  authority,  says  in 
his  admirable  work  on  the  American  Common- 
wealth :  '  The  British  Parliament  had  always  been, 
'was  then,  and  remains  now,  a  sovereign  and  con- 
'  stituent  assembly.  It  can  make  and  unmake  any 
'and  every  law,  change  the  form  of  government  or 
'  the  succession  to  the  crown,  interfere  with  the 
'  course  of  justice,  extinguish  the  most  sacred  pri- 
'  vate  rights  of  the  citizen.  Between  it  and  the 
'  people  at  large  there  is  no  legal  distinction,  because 
'  the  whole  plenitude  of  the  people's  rights  and 
'  powers  resides  in  it.  just  as  if  the  whole  nation 
'were   present   within  the   chamber   where  it  sits. 

1  Marbury  v.  Madison,  i  Cranch  137,  176. 

2  See  Van  Home's  Lessee  v.  Dorrance,  2  Dallas  304,  307. 


48  LAW  AND  POLICY  OF  ANNEXATION 

'  In  point  of  legal  theory  it  is  the  nation,  being  the 
'historical  successor  of  the  Folkmoot  of  our  Teu- 
'  tonic  forefathers.  Both  practically  and  legally,  it  is 
'  to-day  the  only  and  the  sufficient  depository  of  the 
'  authority  of  the  nation ;  and  is,  therefore,  within 
'the  sphere  of  law,  irresponsible  and  omnipotent.'^ 
No  such  powers  have  been  given  to  or  can  be  ex- 
ercised by  any  legislative  body  organized  under  the 
American  system.  Absolute,  arbitrary  power  ex- 
ists nowhere  in  this  free  land.  The  authority  for 
the  exercise  of  power  by  the  Congress  of  the  United 
States  must  be  found  in  the  Constitution.  What- 
ever it  does  in  excess  of  the  powers  granted  to  it, 
or  in  violation  of  the  injunctions  of  the  supreme  law 
of  the  land,  is  a  nullity,  and  may  be  so  treated  by 
every  person.  ...  If  the  Parliament  of  Great 
Britain,  her  Britannic  Majesty  assenting,  should 
establish  slavery  or  involuntary  servitude  in  Eng- 
land, the  courts  there  would  not  question  its  author- 
ity to  do  so  and  would  have  no  alternative  except 
to  sustain  legislation  of  that  character.  A  very 
short  act  of  Parliament  would  suffice  to  destroy  all 
the  guaranties  of  life,  liberty  and  property  now 
enjoyed  by  Englishmen.  'What,'  Mr.  Bryce  says, 
'are  called  in  En<jfland  constitutional  statutes,  such 
'as  Magna  Charta,  the  Bill  of  Rights,  the  Act  of 
'  Settlement,  the  Acts  of  Union  with  Scotland  and 
'  Ireland,  are  merely  ordinary  laws,  which  could  be 
'  repealed  by  Parliament  at  any  moment  in  exactly 
'  the  same  way  as  it  can  repeal  a  highway  act  or 
'lower  the  duty  on  tobacco.  Parliament,'  he  fur- 
ther says,  'can  abolish  when  it  pleases  any  institu- 

1  Vol.  I,  p.  32. 


THE    CONSTITUTION  AND    THE  PHILU'ITNES  a,^ 

"  '  tion  of  the  country,  the  Crown,  the  House  of  Lords, 
"'the  EstabHshed  Church,  the  House  of  Commons, 
"  '  Parliament  itself.'^  In  this  country,  the  will  of  the 
"people  as  expressed  in  the  fundamental  law  must 
"be  the  will  of  courts  and  legislatures.  No  court  is 
"bound  to  enforce,  nor  is  any  one  legally  bound  to 
"obey,  an  act  of  Congress  inconsistent  with  the 
"  Constitution."^ 

If  it  seems  astonishing  that  our  government  should 
not  have  the  free  hand  of  Great  Britain  in  dealing 
with  our  new  possessions,  and  this  astonishment  is 
much  affected  for  the  moment,  we  should  remind 
ourselves  that  present  difficulties  merely  accentuate 
an  incapacity  of  our  government  not  so  radical  from 
a  British  standpoint  as  are  other  incapacities  to 
which  we  are  well  accustomed.  For  example,  in 
the  principal  part  of  the  republic,  comprising  the  ter- 
ritory of  the  States,  the  Federal  Government  is  in- 
competent to  regulate  the  unit  of  society  —  the 
family ;  each  State  has  its  own  laws  of  marriage, 
divorce,  and  legitimacy :  It  is  incompetent  to  regu- 
late the  ownership  and  distribution  of  property,  for 
these  also  are  matters  of  Sf^te  concern:  It  cannot 
designate  the  basis  of  popular  government  —  the 
electorate ;  the  voting  strength  of  the  republic  is 
vested  in  forty-five  electoral  bodies,  created  by  as 
many  States,  which  are  only  forbidden  to  deny  the 
suffrage  to  any  person  because  of  race,  color,  or  pre- 
vious condition  of  servitude :  ^  It  cannot  command 
revenues  which  are  among  the  ordinary  resources  of 

1  Vol.  I,  pp.  237,  238. 

2  Robertson  v.  Baldwin,  165  U.  S.  275,  296. 
^^Q&  infra,  p.  55. 

4 


50  LAW  AND  POLICY  OF  ANNEXATION 

European  states,  for  it  is  practically  debarred  from 
collecting  taxes  on  land  and  incomes ;  ^  nor  can  it, 
like  the  German  Empire,  enjoy  the  fruits  of  these 
direct  taxes  by  way  of  contributions  from  the  fed- 
erated states. 

In  view  of  these  and  other  incapacities  incident 
to  our  peculiar  government,  especially  its  admirable 
incapacity  for  arbitrary  rule,  it  is  not  surprising  that 
the  Constitution  should  be  the  law  throughout  the 
United  States,  and  could  it  be  maintained  that  our 
new  possessions  are  not  in  the  United  States,  we 
would  have  no  right  to  govern  them  as  we  do,  for 
the  Supreme  Court  has  declared  :  "  By  the  Constitu- 
"  tion  a  government  is  ordained  and  established  '  for 
"  '  the  United  States  of  America,'  and  not  for  countries 
"  outside  of  their  limits."  ^ 

iSee  infra,  p.  85. 

2  Ross's  Case,  140  U.  S.  453,  464. 


CHAPTER   III 

THE   APPLICATION    OF   THE    CONSTITU- 
TION   IN    THE    PHILIPPINES 

The  considered  arguments  against  the  Constitu- 
tion for  the  Philippines  affect  the  sanction  of  law, 
but  they  are  really  arguments  of  inconvenience. 
They  rest  upon  the  assumed  inexpediency,  if  not  the 
impossibility,  of  constitutional  government  rather 
than  upon  approved  legal  principles.  The  assump- 
tion cannot  be  disproved  by  reciting  opinions  of  the 
Supreme  Court,  for  it  suggests  a  question  of  fact. 
It  will  appear,  however,  that  our  constitutional  powers 
are  adequate,  and  that  our  constitutional  obligations, 
chiefly  regarding  citizenship  and  civil  rights,  slavery, 
commerce,  and  taxation,  are  not  presumptively 
unendurable. 

The  Constitution  permits  the  pacification  of  the 
Philippines  by  any  method  which  public  opinion 
should  tolerate.  Surely  a  government  that  sup- 
pressed the  revolt  of  eleven  States  has  constitutional 
power  to  deal  with  any  insurrection  in  federal  terri- 
tory ;  and  when  reconstruction  shall  follow  pacifica- 
tion, a  government  that  "reconstructed"  the  South 
after  the  Civil  War  cannot  decently  complain  oi  lack 
of  power  in  the  Philippines.     Furthermore,  the  Con- 

51 


(1 


52  LAW  AND  POLICY  OF  ANNEXATION 

stitution  permits  the  President  to  administer  the  islands 
after  a  fashion  until  Congress  shall  exert  its  powers,^ 
and  does  not  hamper  Congress  in  providing  a  gov- 
ernment suited  to  their  needs. ^ 


STATUS    OF    PERSONS 

Natural-Born  Citizens 

All  persons  born  in  the  Philippines  after  annexa- 
tion, and  subject  to  our  jurisdiction  are  citizens  of  the 
United  States;   though,  as  we  shall  see,  they  are  not      \ 
members  of  the  voting  body  of  the  republic.  I  I) 

This  proposition  is  denied  not  only  on  the  ground, 
already  noted,  that  the  Constitution  is  wholly  ineffec-       | 
tive  beyond  the  States,  but  upon  a  peculiar  interpre-       / 
tation  of  the  first  sentence  of  the  Fourteenth  Amend-      ! 
ment,  which  reads:   ''All  persons  born  or  naturalized 
"  in  the  United  States,  and  subject  to  the  jurisdiction     I 
"  thereof,   are  citizens  of  the  United  States   and  of     ; 
"the  State  wherein  they  reside."     The  last  clause,     ' 
"and  of  the  State  wherein   they  reside,"  is   said  to 
restrict  the  words   "United    States"  to  the  several 
States.     We  are   told  that  had  the   framers  of  the 
Amendment  contemplated  a  broader  field  than  the 
States  they  would  have  written,  "and  of  the  State 
"or  Territory  where  they  reside."     This,   certainly, 
they   would    not    have    done.       Citizenship    involves   \ 
allegiance.      Allegiance  is  due  only  to  a  sovereign.  ;  \ 
The    territorial    frovernments    have    no   attribute    of 


••^ 


1  See  infra,  p.  io6.  ^gee  infra,  p.  125. 


THE  APPLICATION  OF  THE   CONSTITUTION  53 

sovereigTity,  being  merely  the  creatures  of  Congress 
and  existing  during  its  pleasure.  Persons  have  in- 
deed been  described  in  judicial  opinions  as  "citizens 
"of  a  Territory,"  but  this  must  be  understood  as  a 
term  of  convenient  description.  As  "  a  citizen  of 
"Philadelphia"  describes  a  citizen  of  the  State  of 
Pennsylvania  residing  in  one  of  its  cities,  so  "a  citi- 
"  zen  of  Alaska  "  means  a  citizen  of  the  United  States 
residing  in  one  of  those  Territories  whose  position 
in  the  United  States  has  been  aptly  indicated  by  lik- 
ening them  to  "organized  municipalities."^  The 
clause  is  to  be  understood  as  a  distinct  command 
rather  than  as  part  of  a  general  description.  Its 
sole  purpose  is  to  compel  each  State  to  recognize  as 
its  citizens  all  persons  residing  therein  whom  the 
United  States  recognize  as  their  citizens. 

The  narrow  construction  of  the  Amendment  that 
would  restrict  United  States  citizenship  to  persons 
born  or  naturalized  within  a  State  is  disapproved  by 
the  Supreme  Court,  which  has  said  that  a  man  "must 
"reside  within  the  State  to  make  him  a  citizen  of  it, 
"but  it  is  only  necessary  that  he  should  be  born  or 
"  naturalized  in  the  United  States  to  be  a  citizen  of 
"the  Union"  :^  And  Mr.  Justice  Bradley  said  in  the 
same  case:  "The  question  is  now  settled  by  the 
"  Fourteenth  Amendment  itself,  that  citizenship  of 
"the  United  States  is  the  primary  citizenship  in 
"  this  country ;  and  that  State  citizenship  is  second- 
"  ary  and  derivative,  depending  upon  citizenship  of 
"the   United  States  and  the  citizen's  place  of  resi- 

'  See  supra,  p.  39. 

-Slaughter-house  Cases,  16  Wallace  36,  74. 


54  LAW  AND  POLICY  OF  ANNEXATION 

"dence."^  In  a  late  opinion  the  Court  says:  "Thewords 
"'in  the  United  States,  and  subject  to  the  jurisdiction 
"'thereof,'  in  the  first  sentence  of  the  Fourteenth 
"  Amendment  of  the  Constitution,  must  be  presumed 
"  to  have  been  understood  and  intended  by  the  Con- 
"  gress  which  proposed  the  amendment,  and  by  the 
"  legislatures  which  adopted  it,  in  the  same  sense  in 
"  which  the  like  words  had  been  used  by  Chief  Justice 
"  Marshall  in  the  well-known  case  of  The  Exchange  ; 
"  and  as  the  equivalent  of  the  words  'within  the  limits 
"  '  and  under  the  jurisdiction  of  the  United  States,'  and 
"  the  converse  of  the  words  '  out  of  the  limits  and  juris- 
"* diction  of  the  United  States,'  as  habitually  used  in 
"the  Naturalization  Acts."^  A  scrutiny  of  Naturali- 
zation Acts,  beginning  with  the  Act  of  1795,  will 
show  that  "the  United  States"  wherein  an  applicant 
for  citizenship  must  have  resided  for  a  prescribed 
period,  and  in  which  he  may  be  naturalized,  includes 
the  Territories. 

The  terms  "  citizen,"  "  citizen  of  the  United  States," 
and  "citizens  of  the  United  States"  are  employed 
elsewhere  in  the  Constitution  to  describe  a  larger 
body  than  the  people  of  the  States.  The  Constitu- 
tion prescribes  that  a  Congressman  must  have  been 
seven  years  a  "citizen  of  the  United  States,"  and  a 
Senator  nine  years.  Is  the  State  of  Utah  unlawfully 
represented  in  the  Senate  on  the  theory  that  her 
Senators  have  only  been  citizens  of  the  United  States 
since    Utah    was    admitted    to    statehood     in    1896? 

1  Page  112.  Chief  Justice  Marshall  had  anticipated  this  opinion 
many  years  before,  saying :  "A  citizen  of  the  United  States  resid- 
ing in  any  State  of  the  Union,  is  a  citizen  of  that  State."  Gassies 
V.  Ballon,  6  Peters  761. 

-  U.  S.  V.  Wong  Kim  Ark,  169  U.  S.  649,  687. 


THE  APPLICATION  OF  THE    CONSTITUTION  55 

Only  a  natural-born  citizen  who  has  reached  the  age 
of  thirty-five  years  and  has  resided  fourteen  years 
"within  the  United  States"  is  eligible  to  the  Presi- 
dency. Will  it  be  contended  that  a  man  born  in 
Colorado  Territory  in  1864  was  not  born  in  the 
United  States?  Or  that  a  man  born  in  Ohio  in  the 
same  year  and  taken  in  infancy  to  what  is,  since 
1889.  the  State  of  Washington,  has  not  resided  four- 
teen years  in  the  United  States?  The  Fifteenth 
Amendment  reads:  "The  ricrht  of  citizens  of  the 
"United  States  to  vote  shall  not  be  denied  or 
"abridged  by  the  United  States  or  by  any  State  on 
"  account  of  race,  color,  or  previous  condition  of 
"servitude."  This  Amendment  plainly  contemplates 
a  power  in  Congress  to  confer  the  suffrage.  Now 
Congress  can  neither  confer,  deny,  nor  abridge  the 
suffrage  in  any  State,  for  each  State  has  the  ex- 
clusive power  to  designate  its  voting  body,  subject 
only  to  the  limitation  of  this  Amendment.^    The  field 

1  See  U.  S.  V.  Cruikshank,  92  U.  S.  542,  555.  The  broad 
powers  of  the  States  in  the  matter  of  the  suffrage  are  well  illus- 
trated in  the  voting  body  designated  by  the  Constitution  of  Minne- 
sota, Art.  VII,  Sec.  i :  "  Every  male  person  of  the  age  of  twenty- 
one  years  or  upwards,  belonging  to  either  of  the  following  classes, 
who  shall  have  resided  in  the  United  States  one  year,  and  in  this 
State  for  four  months  next  preceding  any  election,  shall  be  entitled 
to  vote  at  such  election,  in  the  election  district  of  which  he  shall  at 
the  time  have  been  for  ten  days  a  resident,  for  all  officers  that  now 
are,  or  hereafter  may  be  elected  by  the  people.  First :  Citizens  of 
the  United  States.  Seco?id :  Persons  of  foreign  birth  who  shall 
have  declared  their  intention  to  become  citizens,  conformably  to 
the  laws  of  the  United  States  upon  the  subject  of  naturalization. 
Third :  Persons  of  mixed  white  and  Indian  blood  who  have  adopted 
the  customs  and  habits  of  civilization.  Fourth  :  Persons  of  Indian 
blood  residing  in  this  State,  who  have  adopted  the  language,  cus- 


56  LAW  AND  POLICY  OF  ANNEXATION 

of  federal  action  in  the  matter  of  suffrage  is  then 
beyond  the  States,  and  the  Amendment  declares,  in 
effect,  that  if  Congress  shall  create  a  voting  body  in  a 
Territory  it  cannot  deny  the  suffrage  to  any  citizen 
of  the  United  States  therein,  that  is  to  say,  to  any 
person  owing  allegiance  to  the  United  States, 
because  of  "  race,  color,  or  previous  condition  of 
"  servitude." 

We  need  not  rely  upon  an  inspection  of  constitu- 
tional texts  alone  to  sustain  our  broad  definition  of  a 
natural-born  citizen  of  the  United  States.  The  Su- 
preme Court  declares  that  recourse  must  be  had  to 
the  common  law  to  determine  who  are  native-born 
citizens,^  and  the  common  law,  ignorant  of  our  State 
boundaries,  makes  all  persons  born  within  the  do- 
minion and  jurisdiction  of  the  sovereign  natural-born 
subjects,  or,  in  our  republican  phrase,  "citizens." 
The  Court  says  in  the  case  cited  :  "  Passing  by  ques- 
"  tions  once  earnestly  controverted,  but  finally  put  at 
"  rest  by  the  Fourteenth  Amendment  of  the  Consti- 
"  tution,  it  is  beyond  doubt  that,  before  the  enactment 
"of  the  Civil  Rights  Act  of  1866  or  the  adoption  of 
"the  Constitutional  Amendment,  all  white  persons, 
"at  least,  born  within  the  sovereignty  of  the  United 
"  States,  whether  children  of  citizens  or  of  foreigners, 
"excepting  only  children  of  ambassadors  or  public 
"ministers  of  a  foreign  eovernment,  were  native-born 
"citizens    of  the    United    States."^     This  statement 

toms  and  habits  of  civilization,  after  an  examination  before  any 
District  Court  of  the  State,  in  such  manner  as  may  be  provided  by 
law,  and  shall  have  been  jironounced  by  said  court  capable  of  en- 
joying the  rights  of  citizenship  within  the  State." 

1  U.  S.  V.  Wong  Kim  Ark,  169  U.  S.  649. 

-U.  S.  V.  Wong  Kim  Ark,  169  U.  S.  649,  674. 


THE  APPLICATION  OF  THE   CONSTITUTION  57 

presents  the  opening  words  of  the  Fourteenth  Amend- 
ment in  their  true  light.  They  do  not  create  citizen- 
ship of  the  United  States,  but  affirm  the  preexisting 
common-law  rule  of  citizenship  by  birth,  and  secure 
to  "all  persons"  the  benefit  of  this  rule,  which  as  ap- 
plied by  the  federal  courts  of  this  country  in  the  past 
ignored  the  African  race. 


Indiafis  and  Foreigners 

Persons  who,  though  born  in  the  United  States, 
are  not  citizens,  because  not  subject  to  the  jurisdic- 
tion, are  the  children  of  foreign  ministers,  of  Indians, 
and  of  alien  enemies  in  occupation  of  our  soil.^ 

Tribal  Indians  within  the  domain  of  the  original 
States  were  set  apart  by  the  Constitution  as  a  pecu- 
liar people,  and  with  each  extension  of  territory  other 
tribes  have  been  surrounded.  Congress  cannot  make 
a  man  an  "  Indian "  by  calling  him  one,  because, 
though  the  status  of  the  Indian  is  in  some  respects 
indeterminate  and  in  all  respects  anomalous,  it  is 
settled,  at  least,  that  he  is  a  person  born  in  the  alle- 
giance of  a  tribe  of  barbarous  or  savage  origin,  hav- 
ing its  seat  in  United  States  territory,  yet  being,  in 
the  language  of  the  Supreme  Court,  "a  distinct  po- 
"litical  community."^  There  are  natives  in  the  Phil- 
ippines who  appear  to  have  maintained  their  political 
organization  during  the  overlordship  of  Spain,  as  had 
the  Seminoles  in  Florida,  and  who,  like  the  Semi- 
noles,  will  be  segregated  as  Indians. 

*  See  U.  S.  V.  Wong  Kim  Ark,  169  U.  S.  649,  693. 
"Elk  V.  Wilkins,  112  U.  S.  94,  99. 


S8  LAW  AND  POLICY  OF  ANNEXATION 

The  "  Moros,"  as  the  Mohammedan  natives  are 
called,  are  in  the  "  Indian  "  class.  The  Tagals  and 
some  other  races  are  for  the  most  part  above  it, 
though  I  confess  that  at  one  time  I  assumed,  igno- 
rantly,  that  the  great  majority  of  the  islanders  were 
barbarians.  The  Tagals  are  now  miscalled  a  "  tribe"] 
merely  to  insinuate  the  propriety  of  treating  them 
with  the  contempt  usually  displayed  by  civilized  con- 
querors towards  barbarians.  In  reality  they  emerged 
from  the  tribal  state  long  ago,  and  at  the  time  of  our 
coming  to  the  Philippines  were  the  most  conspicuous 
section  of  the  great  body  of  the  Christian  subjects  of 
Spain  in  the  islands. 

"Alien  enemies"  is  not  a  legal  description  of  the 
Filipinos  in  arms.  Without  suggesting  a  general 
likeness  between  them  and  the  Confederates  of  1861, 
in  one  respect  their  positions  are  not  altogether  dis- 
similar. Said  the  Supreme  Court  of  the  insurgent 
State  of  Texas  and  its  people:  "The  State  did  not 
"  cease  to  be  a  State,  nor  her  citizens  to  be  citizens  of 
"the  Union.  If  this  were  otherwise,  the  State  must 
"have  become  foreign,  and  her  citizens  foreigners. 
"The  war  must  have  ceased  to  be  a  war  for  the  sup- 
"  pression  of  rebellion,  and  must  have  become  a  war 
"for  conquest  and  subjugation."^  In  point  of  fact, 
the  war  in  Luzon  is  waged  for  conquest  and  subjuga- 
tion, yet  it  is  not  a  foreign  war.  Like  the  Civil  War 
it  is  an  insurrection  against  the  United  States,  and 
the  status  of  the  insurgents  is  determined,  like  that 
of  the  Confederates,  by  our  assertion  of  sovereignty, 
and  not  by  their  assertion  of  independence. 

1  Texas  v.  White,  7  Wallace  700,  726. 


THE  APPLICATION  OF  THE    CONSTITUTION  59 

The  Chinese  and  the  other  foreigners  in  the  Philip- 
pines are  within  the  protection  of  the  rule  that  while 
an  alien  "lawfully  remains  here  he  is  entitled  to  the 
"benefit  of  the  guaranties  of  life,  liberty,  and  prop- 
"  erty  secured  by  the  Constitution  to  all  persons,  of 
"whatever  race,  within  the  jurisdiction  of  the  United 
"States.  His  personal  rights  when  he  is  in  this 
"country  and  such  of  his  property  as  is  here  during 
"his  absence,  are  as  fully  protected  by  i:he  supreme 
"  law  of  the  land  as  if  he  were  a  native  or  naturalized 
"citizen  of  the  United  States."^ 

The  Privilege  of  Election  —  The  Plebiscite 

Treaties  of  annexation  involving  a  part  only  of 
national  territory  frequently  provide  that  the  sub- 
jects or  citizens  of  the  ceding  state  may  elect  to 
retain  their  old  allegiance,  either  unconditionally,  or 
where  the  land  is  well  peopled,  and  the  acquiring 
state  is  unwilling  to  run  the  risk  of  having  a  large 
body  of  aliens  domiciled  in  its  territory,  upon  condi- 
tion that  they  emigrate  within  a  certain  time.  This 
election  is  often  called  a  "right,"  and  as  such  it  may  be 
conceded  in  an  amicable  transfer  between  states  ne- 
gotiating on  an  equal  basis  ;  but  in  case  of  a  conquest 
it  is  nothing  more  than  a  privilege  granted  by  the 
conqueror,  who  thereby  waives  his  right  to  forbid  the 
emigration  of  persons  whom  he  might  hold  as  sub- 
jects or  citizens.^  In  either  case  its  real  value  often 
depends  on  the  ability  of  the  people  to  find  homes 
elsewhere.     This  privilege    was   properly  accorded, 

1  Lem  Moon  Sing  v.  U.  S.,  158  U.  S.  538,  547. 

2  See  U.  S.  V.  Repentigny,  5  Wallace  211,  260. 


6o  LAW  AND  POLICY  OF  ANNEXATION 

without  condition,  to  the  Spanish-born  residents  in 
the  PhiHppines.     It  was  properly  withheld  from  the 
Filipinos,  as  its  allowance  would  have  greatly  embar-  i  j 
rassed  the   United   States  without  holding  out  any  ' 
substantial  advantage  to  the  islanders. 

The  right  or  privilege  of  election  is,  I  think,  the  /  / 
nearest  approach  to  a  recognition  in  international 
practice  of  the  ethical  principle  that  government 
should  exist  with  the  consent  of  the  governed,  in  its'  \ 
relation  to  the  cession  of  territory.  Some  jurists, 
indeed,  claim  the  sanction  of  international  law  for  a 
right  in  the  inhabitants  of  territory  to  determine  its 
destiny  by  their  vote,  but  in  view  of  international 
practice  their  opinion  must  be  regarded  rather  as  an 
aspiration  than  a  statement  of  the  law.  The  United 
States  have  never  required  a  plebiscite  in  any  of 
their  acquisitions,  whether  peaceable  or  forcible,  and 
Secretary  Seward  is  said  to  have  protested,  though 
in  vain,  against  allowing  the  people  of  the  Danish 
West  Indies  to  vote  upon  the  question  of  annexing 
the  islands  to  the  United  States.^  Lord  Salisbury 
bluntly  defined  English  practice  when  he  said  in  the 
House  of  Lords:  "The  plebiscite  is  not  among  the 
"traditions  of  this  country."^  France,  indeed,  has 
annexed  territory  with  the  recorded  approval  of  a 
majority  of  its  people,  though  one  is  by  no  means 
convinced  that  she  would  have  permitted  the  plebi- 
scite without  an  assurance  of  its  favorable  result,  or 
that  she  would  have  foregone  her  enterprise  had  the 
vote  been  unfavorable ;  and  the  story  of  plebiscites 

'  Bancroft,  Life  of  Seward,  II,  483. 

2  Hansard,  3d  Series,  Vol.  CCCXLV,  y.  1311. 


THE  APPLICATION  OF  TJIE   CONSTITUTION  (ii 

generally  does  not  impress  one  with  their  value/ 
The  truth  is  that  the  plebiscite,  while  it  may  be 
eminently  just  and  practicable  in  some  cases,  does 
not  rank  among"  the  working  principles  of  interna- 
tional law.  If  a  strong  state  is  determined  to  despoil 
a  weak  one,  it  will  not  stop  for  a  vote.  If  two  states 
agree  upon  a  transfer  of  territory,  there  is  no  legal, 
nor,  necessarily,  any  moral  reason  why  their  purpose 
should  be  thwarted  by  the  people  who,  at  the  mo- 
ment, happen  to  be  living  in  it. 


Change  of  Nationality 

The  Filipinos,  having  been  divested  of  Spanish 
allegiance,  it  remains  to  determine  their  relation  to 
the  United  States.  A  natural  consequence  of  the 
rule  that  annexed  territory  is  impressed  with  the 
nationality  of  the  acquiring  state  ^  is  the  attribution 
of  this  nationality  to  its  inhabitants.  This  result  is 
accepted  generally  abroad,^  and  has  been  approved 
in  our  federal  courts.  Said  Chief  Justice  Marshall  of 
the  inhabitants  of  Florida  after  its  cession  to  the 
United  States :  "  The  same  act  which  transfers  their 
"country,  transfers  the  allegiance  of  those  who 
"remain  in  it."^    And  the  Supreme  Court  said  in  a 

^See  Despagnet,  Droit  Inter-national  Public,  2d  Ed.  420;  Phil- 
limore,  International  Law,  I,  585,  604. 

-  See  supra,  p.  20. 

^  For  an  interesting  discussion  as  to  the  true  date  of  the  annexa- 
tion of  Algeria  to  France  and  the  consequent  attribution  of  French 
nationahty  to  the  native  Algerians,  see  Hugues,  La  Nationality 
Frangaise  chez  les  Musulmans  de  PAlgerie,  10-14. 

*  American  Insurance  Co.  v.  Canter,  i  Peters  511,  542. 


62  LAW  AND  POLICY  OF  ANNEXATION 

later  case:  "Manifestly  the  nationality  of  the  inhabi- 
"  tants  of  territory  acquired  by  conquest  or  cession 
"becomes  that  of  the  grovernment  under  whose 
"dominion  they  pass,  subject  to  the  right  of  election 
"on  their  part  to  retain  their  former  nationality  by 
"removal  or  otherwise,  as  may  be  provided."^ 

The  general  rule  must  be  applied  to  the  Filipinos, 
unless  it  is  effectively  avoided  by  the  clause  in  the 
Treaty  of  Paris  reserving  to  Congress  the  right  to 
determine  their  political  status.  Now  while  the  term 
"  political  status  "  is  by  itself  broad  enough  to  include 
"allegiance"  and  "nationality,"  the  clause  is  not  to 
be  construed  as  relieving  the  Filipinos  from  the  one 
or  denying  them  the  other.  Such  a  construction 
would  certainly  be  impolitic.  The  treatment  of  these 
people  as  political  nondescripts  would  not  materially 
further  a  policy  of  invidious  discrimination,  because 
it  would  be  impossible  to  deprive  them  of  legal  rights 
under  the  Constitution.  Like  the  Mexicans  of  New 
Mexico,  they  have  come  under  the  jurisdiction  of  the 
United  States  as  former  subjects  or  citizens  of  the 
state  which  has  ceded  the  land  of  their  residence. 
They  have  a  right  to  live  in  their  native  country,  and 
they  must  possess  in  permanence  at  least  the  personal 
and  property  rights  affirmed  by  the  Supreme  Court 
to  foreigners  during  their  sojourn.  Furthermore,  the 
residence  in  our  territory  of  a  multitude  of  persons 
without  national  duty  or  affiliation  of  any  kind  would 
be  embarrassing  in  many  ways. 

Fortunately,  the  impolitic  construction  of  this  treaty 
clause  is  unlawful.     While  it  is  not  impossible  for  an 

1  Boyd  V.  Thayer,  143  U.  S.  135,  162. 


THE  APPLICATION  OF  THE    CONSTITUTION  63 

individual  to  lack  nationality;^  while  the  people  of 
Cuba  are  a  community  to  whom  a  perfect  nationality 
cannot  now  be  attributed;  nevertheless  this  anomalous 
condition  is  so  opposed  to  public  and  private  inter- 
ests that  it  will  never  be  recognized  unless  circum- 
stances permit  no  other  course.  This  is  not  the  case 
here.  By  asserting  sovereignty  over  the  Filipinos, 
as  the  consequence  of  asserting  it  over  the  place  of 
their  residence,  the  United  States  inevitably  claim 
their  allegiance,  and  with  the  duty  of  allegiance  is 
coupled  the  quality  of  nationality. 


Naturalized  Citizens 

Are  not  the  Filipinos  citizens  of  the  United  States,  I 
duly  naturalized  by  the  operation  of  the  Treaty  of 
Paris?  The  Supreme  Court  has  recognized  a  power 
to  create  citizens  en  masse  by  process  of  collective 
naturalization,  "as  by  the  force  of  a  treaty  by  which 
"  foreign  territory  is  acquired.""  The  full  meaning  of 
this  power  has  never  been  adjudicated,  because  the 
treaties  of  annexation  considered  by  the  Supreme 
Court  have  purported  to  confer  citizenship  expressly  ; 
but  Chief  Justice  Marshall  significantly  said  of  the 
citizenship  of  the  people  of  Florida  who  remained 
there  after  the  cession  :  "It  is  unnecessary  to  inquire 
"  whether  this  is  not  their  condition  independent  of 
"  stipulation,"  ^  The  Treaty  of  Paris  contains  no  such 
stipulation.      On  the  contrary,  its  reservation  of  the 

^  See  Hall,  International  Law,  255. 
-Boyd  V.  Thayer,  143  U.  S.  135,  162. 
^American  Ins.  Co.  v.  Canter,  i  Peters  511,  542. 


64  LAW  AND  POLICY  OF  ANNEXATION 

political  status  of  the  islanders  for  the  pleasure 
of  Congress  was  intended  to  exclude  them  from 
citizenship,  if  possible/  but  it  does  not  repudiate  their 
allegiance,  and,  in  my  opinion,  we  confer  citizenship 
upon  those  from  whom  we  claim  allegiance.  And  if 
it  be  objected  that  allegiance  denotes  subjection  but 
not  necessarily  citizenship,  I  reply  that  the  United 
States  do  not  divide  their  people  into  subjects  and 
citizens.  "  In  one  sense  the  term  sovereign,'''  said  Mr. 
Justice  Wilson,  "has  for  its  correlative,  subject.  In 
"  this  sense  the  term  can  receive  no  application,  for 
"  it  has  no  object  in  the  Constitution  of  the  United 
"  States.  Under  that  Constitution  there  are  citizens, 
"but  no  subjects.  'Citizen  of  the  United  States. 
"  '  Citizens  of  another  State.'  '  Citizens  of  different 
"'States.'  'A  State  or  citizen  thereof.'  The  term 
'■'subject  occurs,  indeed,  once  in  the  instrument  but 
"to  mark  the  contrast  strongly  the  epithet  'foreign' 
"  is  prefixed."^ 

A  classification  of  persons  within  the  allegiance  as 
citizens  and  as  subjects  is  properly  made  in  countries 
where  citizenship  carries  political  franchises.  This  is 
the  rule  in  France,  and  so  the  natives  of  Algeria, 
though  they  are  "  Frenchmen,"  are  called  subjects 
unless  they  have  complied  with  the  terms  of  the  law 
conferring  citizenship.^  From  the  standpoint  of  our 
Constitution  such  a  classification  would  be  impossible, 
for  we  shall  see  presently  that  citizens  of  the  United 
States  have  not,  as  such,  any  political  franchise  what- 

1  See  supra,  p.  20. 

-  Chisholm  v.  Georgia,  2  Dallas  419,  456. 

'*  See  Hugues,  La  Nation alite  Frangaisc  chez  les  Musiilmans  de 
V Algerie,  9. 


THE  APPLICATION  OF  THE   CONSTITUTION  65 

ever.  They  are  the  men,  women,  and  children  whose 
relations  to  the  republic  involve  the  reciprocal  duties 
of  loyalty  and  protection,  and,  because  all  persons 
who  are  bound  and  benefited  by  these  duties  are 
equal  before  the  Constitution,  they  are  grouped  under 
a  single  title. 

"Citizens  of  the  United  States,"  is  merely  the 
equivalent  of  "British  subjects,"  and  "Frenchmen" 
in  this  regard,  that  each  describes  the  national  body 
of  the  respective  states. 

Slavery 

The  first  section  of  the  Thirteenth  Amendment  of 
the  Constitution  reads:  "Neither  slavery  nor  invol- 
"untary  servitude,  except  as  a  punishment  for  crime 
"whereof  the  party  shall  have  been  duly  convicted, 
"shall  exist  within  the  United  States,  or  any  place 
"subject  to  their  jurisdiction." 

A  whimsical  argument  against  the  supremacy  of 
the  Constitution  in  territory  beyond  the  States  is 
that  this  Amendment  affirms  a  distinction  between 
"the  United  States"  and  this  territory,  which  is 
alleged  to  be  designated  by  "any  place  subject  to 
"  their  jurisdiction."  This  "place"  has  never  been 
defined  judicially.  Certainly  it  includes  American 
ships,  and  probably  American  legations  abroad, 
and  I  think  such  localities  beyond  the  geographical 
limits  of  the  republic  are  the  sufficient  reason  for  the 
clause.^     It  may  be  conceded,  however,   that  know- 

1  Mr.  Harrison  says  :  "  This  Amendment  was  proposed  by  Con- 
gress on  February  ist,  1865  —  the  day  on  which  Sherman's  army 
left  Savannah  on  its  northern  march;  and  the  words 'any  place 

5 


66  LAW  AND  POLICY  OF  ANNEXATION 

ledge  of  a  debate  on  slavery,  involving  the  relation 
of  the  Constitution  to  the  Territories/  may  have 
impelled  the  framers  of  the  Amendment  to  place  the 
question  beyond  even  discussion.  But,  whatever 
purpose  ingenuity  may  decipher  from  the  phrase,  it 
would  be  a  criminal  perversion  of  the  work  of  the 
Congress  that  adopted  it,  and  of  the  States  that  rati- 
fied it,  to  thrust  into  their  declaration  abolishing 
negro  slavery  a  denial  of  constitutional  liberty  to  all 
Americans  who  happen  to  live  beyond  the  States. 
This  Amendment  deals  with  the  incident  of  slavery 
only.  It  has  no  bearing  on  the  broad  and  distinct  sub- 
ject of  the  sphere  of  the  Constitution.  This  is  deter- 
minable by  considerations  antedating  the  Amendment, 
which,  for  this  reason,  can  add  nothing  to  the  notion 
that  the  Constitution  is  meant  for  the  States  alone. 
For  the  same  reason  it  can  take  nothinof  from  the 
doctrine  that  the  authority  of  the  Constitution  is  con- 
terminous with  the  territorial  jurisdiction  of  Congress. 

Slavery  exists  among  the  Mohammedans  in  the 
Philippines,  and  although  these  people  may  be  treated 
as  "  Indians,"  and  left  with  a  large  discretion  in  the 
management  of  their  domestic  affairs,  they  are  within 
the  purview  of  this  Amendment,  which,  in  fact,  has 
been  held  to  forbid  a  system  of  serfdom  found  among 
the  Indians  of  Alaska.^ 

subject  to  their  jurisdiction '  were  probably  added  because  of  the 
uncertainty  as  to  the  legal  status  of  the  States  in  rebellion,  and  not 
because  of  any  doubt  as  to  whether  Nebraska,  then  a  Territory,  was 
a  part  of  the  United  States." — North  Atnerican  Revinv,  January, 
1 90 1,  p.  6. 

'  See  supra,  p.  35. 

-' Sah  Quah's  Case,  31  Federal  Rep.  727. 


THE  APPLICATION  OF  THE    CONSTITUTION  67 

Concerning"  an  agreement  made  with  the  Sultan 
of  Sulu  by  the  mihtary  authorities,  the  President 
says:^  "Article  X  provides  that  any  slave  in  the  archi- 
"  pelago  of  Jolo  shall  have  the  right  to  purchase  free- 
"  dom  by  paying  to  the  master  the  usual  market 
"  value.  The  agreement  by  General  Bates  was  made 
"subject  to  confirmation  by  the  President,  and  to 
"future  modifications  by  the  consent  of  the  parties 
"in  interest.  I  have  confirmed  said  agreement,  sub- 
"ject  to  the  action  of  the  Congress,  and  with  the 
"reservation,  which  I  have  directed  shall  be  commu- 
"  nicated  to  the  Sultan  of  Jolo.  that  this  agreement 
"  is  not  to  be  deemed  in  any  way  to  authorize  or  give 
"the  consent  of  the  United  States  to  the  existence 
"  of  slavery  in  the  Sulu  archipelago.  I  communicate 
"these  facts  to  the  Congress  for  its  information  and 
"action."  As  the  article  in  question  purports  to 
accord  a  qualified  recognition  of  slavery  it  is  out- 
lawed by  the  Constitution.  We  may  not  handle 
slavery  with  gloves.  The  gradual  emancipation 
tolerated  iDy  England  in  Zanzibar  is  not  permitted 
to  us.  There  is  not  even  a  lawful  process  of  eman- 
cipation. The  Amendment  declares  sharply  that 
slavery  shall  not  "exist,"  and  the  Supreme  Court  has 
pronounced  it  to  be  "undoubtedly  self-executing  with- 
"  out  any  ancillary  legislation,  so  far  as  its  terms  are 
"  applicable  to  any  existing  state  of  circumstances. 
"  By  its  own  unaided  force  and  effect  it  abolished 
"slavery,   and  established  universal  freedom."^ 

The  full   effect  of  the  prohibition  of  "involuntary 
"  servitude"  has  not  been  determined  by  the  Supreme 

1  Annual  message  of  1899,  p.  43. 
-Civil  Rights  Cases,  109  U.  S.  3,  20. 


6S  LAW  AND  POLICY  OF  ANNEXATION 

Court,  which  has  decided,  however,  that  it  does  not 
abrogate  the  ancient  rule  of  the  sea  whereby  a  sailor 
shipping  for  a  voyage  may  be  compelled  to  perform  his 
contract  under  pain  of  imprisonment,  nor  is  intended 
to  introduce  "any  novel  doctrine  with  respect  to 
"certain  descriptions  of  service  which  have  always 
"been  treated  as  exceptional;  such  as  military  and 
"naval  enlistments,  or  to  disturb  the  right  of  parents 
"  and  guardians  to  the  custody  of  their  minor  chil- 
"  dren  or  wards  .  .  .  services  which  have  from  time 
"immemorial  been  treated  as  exceptional  shall 
"  not  be  regarded  as  within  its  purview."  ^  Nor  is 
it  necessary  to  insist  that  a  person  can  in  no  case  be 
compelled  to  complete  a  particular  undertaking  — 
an  engineer  who  should  be  prevented  from  wilfully 
abandoning  a  pump  forcing  air  into  a  mine  would 
not  be  held  in  "involuntary  servitude."  But  after 
making  all  exceptions  warranted  by  inveterate  usage 
or  emergency,  the  Thirteenth  Amendment  appears  to 
declare  that  an  employer  cannot  of  his  own  motion, 
or  by  the  assistance  of  the  state  force  an  unwilling 
workman  to  perform  his  contract.  As  Judge  Cooley 
says:  "Contracts  for  personal  services  cannot,  as  a 
"general  rule,  be  enforced,  and  application  to  be 
"discharged  from  service  under  them  on  habeas 
'■'■corpus  is  evidence  that  the  service  is  involuntary."^ 
And  the  Supreme  Court  has  said:  "If  Mexican 
"  peonage  or  the  Chinese  coolie  labor  system  shall 
"develop  slavery  of  the  Mexican  or  Chinese  race 
"within  our  territory,  this  amendment  may  safely  be 

1  Robertson  v.  l}aklwin,  165  U.  S.  275,  282. 
'^  Constitutional  Limitations,  6th  Ed.  -^y^T^,  note. 


THE  APPLICATION  OF  THE   CONSTITUTION  69 

"trusted  to  make  it  void."^  What  effect  the  en- 
forcement of  the  Thirteenth  Amendment  against  the 
coolie  system  would  have  upon  agriculture  in  some 
of  our  new  possessions  cannot  be  known  until  the 
labor  conditions  are  thoroughly  understood.  It  is 
noteworthy,  however,  that  Great  Britain  finds  it 
expedient  to  legitimate  this  system  in  several  of 
her  colonies,  shorn  of  most  abuses,  it  is  true,  yet 
retaining  the  essential  feature  of  compulsory  service 
during  an  agreed  period.  And  in  the  report  on 
British  New  Guinea  for  1897-98^  we  read  that  Or- 
dinance No.  II  of  1897:  "rendered  it  compulsory 
"  on  a  native  to  perform  the  work  for  which  he  may 
"be  duly  engaged";  and  Ordinance  No.  VIII  of 
1897:  "  provides  that  a  deserting  laborer  may  be  re- 
"  turned  to  his  employer."  However,  in  view  of  the 
state  of  labor  in  Hawaii  we  are  not  free,  at  present, 
to  criticize  British  policy.  In  June,  1899,  the  Su- 
preme Court  of  Hawaii  confirmed  the  order  of  a 
district  magistrate  who,  under  the  Masters  and  Ser- 
vants Act,  had  sentenced  a  man  to  imprisonment  at 
hard  labor  "  until  he  should  consent  to  return  to  his 
"master  and  consent  to  serve  according  to  law."^ 
The  prisoner  was  an  Austrian  who  had  been  "  im- 
"  ported  "  by  the  company  under  contract  to  work  for 
three  years.  The  Court  did  not  attempt  to  distin- 
guish   the    imprisonment    from     the     "involuntary 

^Slaughter-house  Cases,  16  Wallace  36,  72;  cited  in  U.  S.  v. 
Wong  Kim  Ark,  169  U.  S.  649,  677.  For  a  description  of  peonage 
see  Jaremillo  v.  Romero,  i  New  Mexico  190. 

-  Pages  ID,  II. 

■'  Honomu  Sugar  Co.  v.  Zeluch,  60  Albany  Law  Journal  213. 


70  LAW  AND  POLICY  OF  ANNEXATION 

"servitude"  forbidden  by  the  Thirteenth  Amendment, 
but  dismissed  the  Amendment  with  a  curt  reference 
to  earlier  opinions  in  which  it  had  pronounced  the 
Constitution  of  the  United  States  to  be  of  no  force 
during  "the  transition  period." 

If  it  shall  be  finally  determined  that  in  the  United 
States  Territory  of  Hawaii  a  plantation  hand  maybe 
imprisoned  until  he  is  ready  to  perform  his  contract 
to  labor,  perhaps  a  like  system  will  some  day  be 
established  in  the  States  that  have  already  practically 
disfranchised  the  negro. 


RIGHTS    OF    PERSONS 

Political  Fra7ichises 

Citizens  of  the  United  States  not  residing  in  States 
have  no  voice  in  federal  affairs,^  nor  have  they  a  con- 
stitutional ricrht  to  reofulate  their  own. 

The  entire  sovereignty  over  territory  beyond  the 
States  is  vested  exclusively  in  the  federal  legislature. 
This  proposition  was  questioned  in  the  Dred  Scott 
case,^  and  Senator  Douglas  and  other  statesmen  de- 
clared that  the  people  of  the  Territories  possessed 
sufficient  "popular  sovereignty"  to  decide  for  them- 
selves whether  slavery  should  be  allowed  within 
their  borders.  The  doctrine  of  "  popular  sovereignty" 
in  the  Territories  was  a  political  device  for  taking  the 
question  of  slavery  out  of  federal  politics.  It  was 
wholly  incompatible  with  tlie  fundamental  conception 

J  See  supra,  p.  14. 

2  Scott  V.  Sandford,  19  Howard  293,  501. 


THE  APPLICATION  OF  THE   CONSTITUTION  ^^i 

of  the  union  of  States,  and  is  now  thoroughly  dis- 
credited.^ The  definition  of  Fihpinos  as  "citizens" 
carries  no  right  to  participate  in  governing  the  re- 
public, nor  any  State,  nor  even  the  Philippines. 
They  can  become  members  of  the  voting  body  of  the 
United  States  only  by  coming  into  a  State  and  sat- 
isfying the  requirements  of  the  local  law  of  suffrage. 
They  can  exercise  in  the  islands  only  such  political 
franchises  as  Congress  may  grant.  In  the  language 
of  the  Supreme  Court:  **The  personal  and  civil 
"  rights  of  the  inhabitants  of  the  Territories  are  se- 
'*  cured  to  them,  as  to  other  citizens,  by  the  principles 
"of  constitutional  liberty  which  restrain  all  the  agen- 
"  cies  of  government.  State  and  national ;  their  politi- 
"  cal  rights  are  franchises  which  they  hold  as  privileges 
"  in  the  legislative  discretion  of  the  Congress  of  the 
"United  States." 2 


Civil  Rights 

There  is  no  absurdity  in  attributing  the  personal  and 
civil  rights  of  the  Constitution  to  the  Filipinos  when 
the  nature  and  limitations  of  these  rights  are  under- 
stood. Surely  the  republic  must  regard  life,  liberty, 
and  property  everywhere  as  rights,  not  as  privileges. 
Even  these  primary  rights  are  not  absolute.  Each 
one  may  be  forfeited  for  crime.  Each  is  held  subject 
to  the  legitimate  claims  of  the  State. 

Of  course  the  right  to  liberty  confers  the  freedom 

^  See  National  Bank  v.  County  of  Yankton,  loi  U.S.  129, 
133;  Murphy  v.  Ramsey,  114  U.  S.  15,  44;  Mormon  Church  v. 
U.  S.,  136  U.  S.  I,  44. 

-  Murphy  v.  Ramsey,  114  U.  S.  15,  44. 


72  LAW  AND  POLICY  OF  ANNEXATION- 

of  the  republic,  and  no  law  can  check  the  orderly  \ 
migration  of  Filipinos  to  any  part  of  the  country.  A 
man's  right  to  work  in  any  part  of  the  republic,  and 
his  right  to  send  the  lawful  product  of  his  labor  to 
any  part,  rest  upon  precisely  the  same  foundation  of 
personal  liberty.  As  for  liberty  of  speech  and  of  the 
press,  expressly  guaranteed  by  the  Constitution,  why 
should  not  a  Filipino  speak  and  write  his  mind  when 
he  may  be  punished  for  abusing  his  rights,  and  hung 
if,  like  the  Chicago  anarchists,  his  utterances  are 
linked  to  the  crimes  they  are  intended  to  provoke? 

The  Filipinos  are  entitled  to  bear  arms,  but  the 
Constitution  affirms  this  right  for  "the  security  of  a 
"free  state,"  not  for  the  benefit  of  insurgents;  they 
may  assemble  and  petition  for  redress  of  grievances, 
but  the  Constitution  requires  them  to  do  so  ' 
"peaceably." 

Our  rejection  of  the  guaranties  as  constitutional 
standards  of  conduct  in  the  Philippines  would  mean 
to  the  islanders  the  rule  of  a  new  master  of  higher 
purpose,  of  greater  ability,  of  kindlier  disposition 
than  the  old  one,  yet  quite  as  free  from  the  restraints 
of  law.  Defininsf  the  so-called  riirhts  of  the  islands 
under  such  a  regime,  the  Secretary  of  War  proffers 
"  moral  right,"  and  "  the  nature  of  our  Government," 
and  "implied  contract"  as  efficient  substitutes  for 
lefifal  fifuaranties.^ 

In  the  same  vein  Judge  Day,  the  head  of  the 
American  Peace  Commission  at  Paris,  says:  "  What- 
"ever  the  power  of  the  American  Government  under 
"the    Constitution,    the    American    people,  through 

1  See  Report  for  1899,  pj).  26,  27. 


THE  APPLICATION  OF  THE    CONSTITUTION  73 

"their  executive  and  representatives  in  Congress, 
"may  be  trusted  to  see  that  there  goes  with  Ameri- 
"can  sovereignty  the  underlying  principle  of  free- 
"  dom  and  liberty  for  which  our  fathers  fought  and 
"for  which  they  set  up  a  government  of  and  by  and 
"for  the  people.  A  party  which  should  ignore  or 
"forget  these  principles  would  be  relegated  by  the 
"  people  from  power  to  obscurity."^ 

A  profession  of  good  intentions  is  merely  a  pious 
opinion,  not  a  substitute  for  a  bill  of  rights.  The 
Constitution  originally  adopted  contained  very  few 
provisions  of  a  bill  of  rights,  and  this  omission  was 
warmly  defended  by  Hamilton,^  Wilson,^  and  other 
statesmen.  But  the  people  mistrusted  a  government 
apparently  capable  of  inflicting  the  abuses  so  intoler- 
able under  English  rule.  They  made  light  of  the 
objection  that  the  prohibition  of  specific  abuses  might 
imply  the  power  to  inflict  unforeseen  ones.  They 
demanded  the  guaranties  that  were  quickly  imposed 
in  the  first  ten  amendments,  and  these  so  thoroughly 
covered  the  ground  that  no  further  prohibition  has 
been  laid  upon  federal  power  save  in  the  Fifteenth 
Amendment,  forbidding  the  United  States  to  deprive 
any  person  of  suffrage  because  of  "race,  color,  or  pre- 
"vious  condition  of  servitude."  The  same  jealousy 
of  arbitrary  power  is  manifested  in  all  the  constitutions 
of  the  States.  How  graceless,  then,  is  the  assertion 
that  Filipinos  and  Porto  Ricans  find  ample  protection 
in  the  self-asserted  righteousness  of  the   governing 

1  Address  before  the  Michigan  Bar  Association,  May  23,  1900, 
p.  12. 

2 The  FederaUst,  No.  84. 

■^Elliot's  Debates,  ist  Ed.,  Ill,  251. 


74  LAW  AND  POLICY  OF  ANNEXATION 

body  of  the  republic,  when  this  body  has  determined 
that  neither  prejudice  of  race  or  class  or  religion,  nor 
the  power  of  one  or  of  many  shall  overcome  the 
rights  of  its  own  members  so  far  as  the  organic  law 
enforced  by  the  courts  can  maintain  them  !  And  who 
will  say  that  constitutional  restraints  so  necessary 
in  the  self-governing  sections  of  the  republic  are 
superfluous  in  the  Philippines  ?  Who  will  say  that 
abuse  of  power  decreases  with  the  growth  of  op- 
portunity ? 

The  Bill  of  Rights  is  not  an  essay  on  liberty.  It 
is  a  law  forbidding  acts  which,  for  the  most  part,  are 
political  crimes,  and  the  illegality  of  these  acts  does 
not  depend  on  the  place  of  their  commission  or  the 
color  of  their  victims,  if  they  are  committed  within 
the  territorial  jurisdiction  of  Congress. 

Conscious  of  the  injustice  of  arrogating  the  exclu- 
sive benefits  of  the  federal  bill  of  rights  to  the 
people  of  our  country  who  need  them  least,  the 
opponents  of  constitutional  rule  in  the  new  territory 
are  casting  about  for  a  device  whereby  some  of  these 
benefits  at  least  may  be  carried  to  the  islands  with- 
out drawinor  the  Constitution  after  them. 

o 

In  Goetze  v.  U.  S.,^  the  Court,  commenting  on  a 
proposition  that  "  a  republic  cannot  be  allowed  to 
"govern  without  any  restraint,"  says:  "In  this  very 
"principle  we  may  find  the  safeguard  of  such  terri- 
"  tory.  If  the  United  States  tried  to  govern  any 
"  territory  in  violation  of  the  spirit  pervading  repub- 
"  lican  institutions,  such  action  might  be  held  illegal 
"by  courts  on  the  basis  of  this  principle.      It  may 

'  103  Federal  Rep.  72,  84. 


THE  APPLICATION  OF  THE    CONSTITUTION  ^^ 

be  admitted  that  the  constitutional  guaranties  of 
civil  rights  would  apply  to  territory  under  the  sov- 
ereignty, but  not  a  part,  of  the  United  States. 
Certain  civil  rights  which  we  believe  belong  to 
every  one,  are  crystallized  into  the  negative  pro- 
visions of  our  Constitution,  in  order  to  prevent  any 
wrongful  and  improper  use  of  our  power,  and  these 
may  well  be  held  to  control  our  power  wherever 
it  reaches.  These  considerations  may  be  found  to 
limit  us  in  governing  any  territory.  Whether  they 
do  or  not  it  is  not  necessary  here  to  decide.  If 
they  do,  it  will  be  because  we  cannot  violate  the 
principles  of  government  embedded  in  our  institu- 
tions, not  because  Porto  Rico  is  a  part  of  the 
American  nation.  It  will  be  for  the  reason  thus 
stated  by  Mr.  Justice  Bradley  in  Mormon  Church 
V.  United  States :  '  Doubtless  Congress  in  legis- 
'  lating  for  the  Territories  would  be  subject  to  those 
'  fundamental  limitations  in  favor  of  personal  rights 
'  which  are  formulated  in  the  Constitution  and 
*  its  amendments  ;  but  these  limitations  would  exist 
'  rather  by  inference  and  the  general  spirit  of  the 
'  Constitution,  from  which  Congress  derives  all  its 
'  powers,  than  by  any  express  and  direct  applica- 
'  tion  of  its  provisions.'"  Mr.  Justice  Bradley's 
much-quoted  dictum  is  not  a  fit  conclusion  to  these 
observations,  because  it  recognizes  the  obligation  of 
the  guaranties,  which  is  the  important  thing,  and 
describes  it  as  being  inferential  rather  than  direct, 
which  is  not  important.  Concerning  the  observa- 
tions themselves  I  have  only  to  say  that  a  judge  who 
asserts  that  our  new  possessions  are  not  "part  of  the 
"  American  nation  "  is  estopped  from  anticipating  that 


76  LAW  AND  POLICY  OF  ANNEXATION 

their  inhabitants  may  be  entitled  to  the  guaranties ; 
for  the  Supreme  Court  has  declared  :  "  The  Constitu- 
"  tion  can  have  no  operation  in  another  country."^  And 
"the  spirit  pervading  republican  institutions"  cannot 
be  invoked  by  the  courts  to  discredit  acts  of  govern- 
ment, except  as  it  is  embodied  in  the  Constitution, 
for  in  this  written  law  the  people  of  the  United  States 
have  gone  as  far  as  they  intended  to  go  in  restraining 
their  government.  The  right  of  the  Supreme  Court 
to  condemn  acts  conflicting  with  these  limitations  has 
long  been  conceded;  but  should  the  court  enthrone  a 
"spirit"  whose  responses  must  reflect  the  opinion  or 
prejudice  of  the  questioning  judge,  it  would  assert  an 
intolerable  power  of  intervention  in  affairs  of  state,  as 
well  in  New  York  as  in  the  Philippines. 


TAXATION COMMERCE 

The  authority  of  the  Constitution  in  the  Philip- 
pines has  an  important  bearing  upon  the  subject  of 
federal  taxation,  especially  the  taxation  of  commerce. 

Foreign  Commerce 

First,  of  commerce  between  the  islands  and  foreign 
countries.  After  our  occupation  of  California  had 
been  confirmed  by  the  ratification  of  the  treaty  of 
cession,  the  Administration  abandoned  the  military 
tariff  imposed  during  the  belligerent  occupation,  and 
proceeded  to  collect  upon  foreign  imports  the  duties 

'  Ross's  Case,  140  U.  S.  453,  464. 


THE  APPLICATION  OF  THE    CONSTITUTION  77 

of  the  general  Tariff  Act.^  A  different  practice  pre-  ' 
vails  in  the  Philippines,  where  the  Administration 
imposes  duties  at  discretion.  Now  even  if  Congress 
were  authorized  to  levy  peculiar  taxes  upon  foreign 
goods  brought  into  annexed  territory,  the  President 
would  have  no  right  to  do  so.  His  ability  to  collect 
duties  at  all  rests  upon  a  presumed  intention  of  Con- 
gress evidenced  by  a  tariff  act,  and  it  is  not  definitely 
settled  that  even  such  collections  are  valid  unless 
they  are  ratified  by  Congress.^  To  admit  his  right 
to  levy  taxes  at  discretion  because  of  a  latent  power 
in  Congress  to  do  this  would  imply  the  existence  of 
an  executive  power  to  originate  revenue  legislation 
in  United  States  territory,  in  derogation  of  the  pro- 
vision of  the  Constitution:  "All  bills  for  raisinof 
"revenue  shall  originate  in  the  House  of  Represen- 
"tatives." 

The  next  question  is  whether  Congress  itself  may 
impose  special  duties  upon  foreign  goods  brought 
into  the  Philippines.  As  a  matter  of  fact,  Congress 
has  never  exacted  peculiar  duties  in  new  districts, 
but  has  always  extended  the  existing  tariff  laws 
either  about  the  time  of  annexation  or  shortly  there- 
after. As  a  matter  of  law,  the  Administration  insists 
that  the  constitutional  provision  that  "  all  duties,  im- 
"  posts,  and  excises  shall  be  uniform  throughout  the 
"  United  States  "  does  not  apply  to  the  new  posses- 
sions. The  Secretary  of  War  says  in  his  report  for 
1899:''  "The  provision  of  the  Constitution  prescribing 

^  Cross  V.  Harrison,  16  Howard  164. 

2  See  infra,  p.  113. 

3  Page  27. 


78  LAIV  AND  POLICY  OF  ANNEXATION 

"  uniformity  of  duties  throughout  the  United  States 
"was  not  meant  for  them  [the  Porto  Ricans],  but  was 
"  a  provision  of  expediency  solely  adapted  to  the  con- 
"ditions  existing  in  the  United  States  upon  the  con- 
"tinent  of  North  America."  I  should  call  a  law 
assuring  equal  taxation  and  freedom  of  trade  through- 
out the  republic  a  provision  of  justice,  not  of  ex- 
pediency, and  I  fail  to  understand  upon  what  principle 
a  court  could  hold  this  provision  to  be  operative  in 
Maine,  Louisiana,  Alaska,  and  Ohio,  and  in  Mexico 
and  Labrador,  should  we  annex  them,  yet  inopera- 
tive in  Porto  Rico.  From  this  makeshift  survey  of 
the  field  of  the  Constitution  we  turn  with  confidence 
to  Chief  Justice  Marshall's  delimitation  suggested  by 
this  very  provision,  and  embodied  in  his  famous  defi- 
nition of  the  "United  States  "  —  "our  great  repub- 
"  lie,  which  is  composed  of  States  and  Territories. 
"The  District  of  Columbia,  or  the  Territory  west  of 
"the  Missouri,  is  not  less  within  the  United  States, 
"  than  Maryland  or  Pennsylvania ;  and  it  is  not  less 
"  necessary,  on  the  principles  of  our  Constitution, 
"that  uniformity  in  the  imposition  of  imposts,  duties, 
"  and  excises  should  be  observed  in  the  one  than  in 
"the  other." ^  Here  is  the  law  of  the  commercial 
unity  of  the  republic  expounded  by  its  foremost  in- 
terpreter, and  the  Philippines,  being  within  the  re- 
public, are  within  the  law. 

Domestic  Co^nmerce 

We  have  next  to  consider  the  question  of  duties 
upon  commerce  between  the  islands  and  our  main- 

1  Loughborough  v.  Jilake,  5  Wheaton  317,  319. 


THE  APPLICATION  OF  THE    CONSTITUTION  79 

land.     A  statement  of  the  Court  in  Pleming  v.  Page^ 
is  often  cited  in  this  relation  :  "  .   .   .   under  our  rev- 
"  enue  laws  every  port  is  regarded  as  a  foreign  one, 
"unless    the    custom-house    from    which    the  vessel 
"  clears  is  within  a  collection  district  established  by 
"  act    of   Congress,    and    the    officers    granting    the 
"clearance  exercise  their  functions  under  the  author- 
"  ity  and  control  of  the  laws  of  the  United  States." 
This  statement  misleads  in  so  far  as  it  lends  color  to 
the  assertion  that  precedent  sanctions  the  taxation 
of  this    commerce.      It    is    conceded    that  a   port  is 
foreign  in  a  fiscal  sense,  though  the  United  States 
claim  title  to  it,  if  they  have  not  gained  possession, 
as  in  the  case  of  Baton  Rouge  in  the  Louisiana  terri- 
tory ceded  by  Spain  to  France  and  by  France  to  us, 
but  actually  held  by  Spain  for  some  time  after  we  had 
taken  possession  of  New  Orleans ;  or  have  lost  pos- 
session, as  in  the  case  of  Castine  in  Maine,  seized  by 
the   British   forces  in  1814:^  and   a  port  is  foreign, 
too,   though    the   United   States  have  possession,   if 
they  await  the  ratification  of  a  treaty  to  perfect  their 
title,  as  in  the  case  of  San  Juan  in  Porto  Rico,  or  if 
they  hold  it  by  mere  force  of  arms,  as  in  the  case  of 
Tampico  in  the  Mexican  War,  which  was  the  matter 
before  the  Court  in  Fleming  v.  Page.     But  a  scru- 
tiny of  administrative  practice  down  to  the  end  of 
the  Mexican  War  shows  that,  with  perhaps  trifling 
and    peculiar    exceptions,    as   in    the    case    of    New 
Orleans,^  duties  were  not  collected  upon  goods  car- 
ried   between    old    and    new    possessions    after    our 

1  9  Howard  603,  617. 

-U.  S.  V.  Rice,  4  Wheaton  246. 

3  See  Cross  v.  Harrison,  16  Howard  164,  199. 


8o  LAW  AND  POLICY  OF  ANNEXATION 

right  to  the  latter  had  been  confirmed  by  the  ratifi- 
cation of  a  treaty  of  cession.    The  notable  illustration 
of  the  rule  of  free  intercourse,  however,  is  the  case 
of   California    after    the    Mexican   War.      Upon  the 
ratification   of  the  treaty  ceding   California   to    the 
United  States,  the  Administration  promptly  recog- 
nized the  trade  between  the  new  territory  and  the 
rest  of  the  country  as  domestic,  as  appears  by  the 
following  passage  from  a  letter  of  the  Secretary  of 
State,  quoted    by    the    Supreme   Court  in    Cross  v. 
Harrison:^   "This  government  rt'^  y^^/^  [the  tempo- 
"  rary    government    of   California]    will,  of    course, 
"  exercise  no  power  inconsistent  with  the  provisions 
"of  the  Constitution  of  the  United  States,  which  is 
"  the  supreme  law  of  the  land.      For  this  reason  no 
"import    duties    can    be    levied    in    California    on 
"articles  the  growth,  produce,  or  manufacture  of  the 
"United  States,  as  no  such  duties  can  be  imposed 
"in  any  other  part  of  our  Union  on  the  productions 
"of  California.      Nor  can  new  duties  be  charged  in 
"  California  upon   such  foreign  productions  as  have 
"already     paid     duties    in     any     of    our     ports    of 
"  entry,    for    the    obvious    reason   that  California   is 
"  within  the  territory  of  the  United    States."     And 
the  Court  also  refers  to  a  despatch  from  the  Secre- 
tary of  the  Treasury  "providing  for  the  reciprocal 
"  admission  of  goods  which  were  the  growth,  etc.,  of 
"California  and  the  United  States,  free  of  duty,  into 
"the  ports  of  each."     The  California  precedent  was 
followed  upon  the  annexation  of  Alaska,  the  Secre- 
tary   of   the   Treasury   deciding    that   furs    and    oils 
brought  in  from  the  new  territory  were  not  subject 

1  1 6  Howard  164,  185. 


THE  APFLICAT/OiV  OF  THE    CONSTITUTION  8i 

to  duty.^  The  present  Administration  disregards 
these  precedents.  It  treats  the  commerce  between 
the  PhiHppines  and  our  mainland  as  foreign,  and 
collects  duties  in  each  upon  the  imported  products  of 
the  other,  exacting  in  the  former  place  a  tax  deter- 
mined by  itself,  and  in  the  latter  the  duties  of  the 
Tariff  Act,  It  is  ungenerous  and  unlawful  to  treat 
our  new  citizens  as  foreigners  in  their  commercial 
relations,  and  to  hamper  an  intercourse  whose  promo- 
tion should  be  our  first  concern.  So  disastrous  did 
this  practice  prove  to  Porto  Rico  that  the  President 
said  to  Congress:  "Our  plain  duty  is  to  abolish  all  ^ 
"customs  tariffs  between  the  United  States  and 
"Porto  Rico,  and  give  her  products  free  access  to 
"our  markets."^  But  this  distress  was  caused  by  his  \  \ 
refusal  to  follow  the  constitutional  practice  of  his  ^ 
predecessors.  The  President  is  not  authorized  to 
hamper  internal  commerce  by  laws  of  his  own  mak- 
ing, and  this  he  has  done  in  levying  duties  on 
merchandise  carried  from  our  mainland  to  our 
islands.  Nor  is  he  authorized  to  enforce  a  tariff  act 
against  merchandise  brought  here  from  islands 
which,  since  its  enactment,  have  become  a  part  of  the 
United  States.  The  Tariff  Act  of  1897  is  entitled 
"  An  Act  to  provide  revenue  for  the  Government 
"and  to  encourage  the  industries  of  the  United 
"  States  "  ;  and  by  the  enacting  clause  its  operation  is 
limited  to  "articles  imported  from  foreign  countries." 
As  the  islands  have  been  made  domestic  territory  by 
the  Treaty  of  Paris  they  are  not  within  the  purview 

^Synopsis  Treasury  Decisions,  1868,  pp.  10,  20.     Letter  of  Sec- 
retary M'Culloch  to  the  Collector  at  New  York,  April  6,  1868. 
2  Annual  message  of  1899,  p.  50. 
6 


\ 


82  LAW  AND  POLICY  OF  ANNEXATION 

of  an  act  intended  to  impose  burdens  upon  foreign 
products  exclusively.  And  this  construction  of  the 
act  is  required  by  the  Constitution,  for  the  rule  of 
uniformity  which,  as  we  have  seen,  forbids  Congress 
to  impose  different  duties  upon  foreign  imports  in 
different  sections  of  the  United  States,  forbids  it  to 
impose  any  duties  whatever  on  commerce  between 
them.  "In  war,  we  are  one  people,"  said  Chief  Jus- 
tice Marshall,  "in  making  peace,  we  are  one  people;" 
and  these  axioms,  whose  application  to  all  persons 
within  the  jurisdiction  of  Congress  none  will  ques- 
tion, are  recited  merely  to  emphasize  the  equal 
breadth  of  another:  "In  all  commercial  relations,  we 
"  are  one  and  the  same  people."  ^ 

Our  inquiry  into  the  subject  of  federal  customs 
duties  leads  to  these  conclusions:  Under  no  cir- 
cumstances can  these  duties  be  lawfully  collected  in 
the  annexed  islands  or  the  mainland  upon  the  im- 
ported products  of  either ;  duties  collected  upon 
foreign  goods  brought  to  the  islands  must  be  the 
same  as  are  imposed  in  the  rest  of  the  United  States.^ 

The  Porto  Rico  Act 

While  the  advocates  of  the  taxation  of  our  com- 
merce with  the  new  possessions  have  not  abandoned 
their  position  that  federal  duties,  imposts,  and  excises 
need  be  uniform  throughout  the  States  only,  they 
have  added  another  string  to  their  bow  by  incorporat- 

'  Cohens  v.  Virginia,  6  Wheaton  264,  413. 

-  Mr.  Edward  B.  Whitney,  of  the  New  York  Bar,  has  contribu- 
ted an  instructive  article  on  the  Porto  Rico  Tariffs  to  the  Yale  Law 
Journal  of  May,  1900. 


THE  APPLICATION  OF  THE    CONSTITUTION  83 

ing  in  the  Porto  Rico  Government  Act  a  system  of 
so-called  local  taxation,  in  the  hope  that  it  may  be 
tested  by  principles  less  rigid  than  those  controlling 
federal  taxation.  The  system  makes  Porto  Rico  a 
fiscal  unit  wholly  independent  of  the  great  fiscal  dis- 
trict of  the  United  States. 

On  behalf  of  this  system  it  is  urged  that  the  island 
should  be  self-supporting,  though,  temporarily,  the 
Act  appropriates  certain  federal  revenues  to  its  use. 
Now  it  is  desirable  that  all  Territories  should  pay 
their  own  expenses,  as  far  as  practicable,  and  this  is 
customary,  but  the  Federal  Government  pays  the 
salaries  of  the  governor,  the  judges,  and  the  secre- 
tary, and  some  small  legislative  expenses.  In  reply 
to  the  objection  that  Porto  Rico  is  charged  with  the 
payment  of  salaries  borne  elsewhere  by  the  federal 
treasury,  it  may  be  said  that  as  the  act  contemplates 
her  exemption  from  federal  charges  (though  I  note  in 
passing  that  she  is  charged  with  the  maintenance 
of  a  United  States  District  Court),  she  should  get 
nothing  from  a  treasury  to  which  she  contributes 
nothing.  But  this  is  a  perverse  view  of  the  relation 
between  the  Federal  Government  and  the  Territo- 
ries. This  Government  is  bound  to  protect  and  ad- 
minister all  its  Territories.  Here  is  an  independent, 
unconditional,  and  continuing  duty  springing  from  the 
assumption  of  sovereignty.  Reciprocally,  a  Territory 
ought  to  bear  its  proper  share  of  federal  expenses. 
Instead  of  saying  that  it  need  not  contribute  to  a 
federal  treasury  from  which  it  gets  nothing,  we  must 
understand  that  it  ought  to  contribute  because,  ap- 
propriations apart,  it  receives  necessarily  the  protec- 
tion of  the  republic.     The  plea  that  the  Porto  Ricans 


84  LAW  AND  POLICY  OF  ANNEXATION 

should  be  excused  from  this  duty  because  of  their 
misfortunes  is  without  merit,  so  long  as  we  do  not  re- 
gard poverty  as  conferring  immunity  from  taxation 
on  our  mainland.  Federal  burdens  press  as  heavily 
upon  millions  of  people  here  as  they  would  upon  the 
Porto  Ricans. 

A  just  policy  requires  that  the  fiscal  status  of  Porto 
Rico  be  assimilated  to  that  of  our  other  Territories, 
and  I  am  satisfied  that  the  act  of  Congress  cutting 
off  the  island  in  this,  as  in  other  respects  from  com- 
munion with  the  republic  does  not  represent  the  real 
attitude  of  our  people,  nor  of  the  Administration  itself 
toward  the  inhabitants  of  this  island  who  so  heartily 
welcomed  us  a  few  months  ago.  Had  Porto  Rico 
been  our  only  spoil  of  war  no  protest  would  have 
been  made  against  her  incorporation  into  the  United 
States.  But  the  Philippines  were  acquired.  Pos- 
sibly, opportunity  may  suggest  the  seizure  of  lands 
even  more  remote  and  uncongenial ;  and  so  Porto 
Rico  is  being  used  as  an  experiment  station  for  test- 
ing novel  schemes  which,  if  legitimated,  may  be 
applied  seriously  elsewhere. 

More  important  than  the  policy  of  the  Porto  Rico 
fiscal  system  is  the  question  whether  it  is  constitu- 
tional in  all  its  parts,  and  the  features  to  which  I  call 
special  attention  are,  i.  The  intention  (not  per- 
fectly realized)  to  exempt  Porto  Rico  from  federal 
taxes.  2.  The  collection  in  Porto  Rico  upon  im- 
ports from  foreign  countries  of  the  duties  prescribed 
in  the  federal  tariff  act;  upon  merchandise  brought 
from  our  mainland  and  not  already  placed  on  the 
free  list  by  the  military  government  of  fifteen   per 


THE  APPLICATION  OF  THE    CONSTITUTION  85 

cent,  of  these  duties,  and  in  addition  an  internal 
revenue  tax  equal  to  that  imposed  in  Porto  Rico  on 
like  articles  of  local  manufacture ;  upon  all  imported 
coffee  a  duty  of  five  cents  per  pound.  3.  The  col- 
lection at  the  ports  of  our  mainland  upon  all  imports 
from  Porto  Rico  of  fifteen  per  cent,  of  the  federal 
tariff  rates,  and  in  addition  an  internal  revenue  tax 
on  articles  withdrawn  for  consumption  equal  to  the 
federal  tax  imposed  upon  similar  articles  of  local 
manufacture.  The  net  revenue  thus  collected  in  the 
island,  and  the  gross  revenue  thus  collected  in  the 
mainland  are  segregated  from  the  general  fund  of  the 
federal  treasury,  and  are  designated  as  a  special  fund 
at  the  President's  disposal  to  be  expended  for  the 
government  and  benefit  of  Porto  Rico. 

The  first  question  is  whether  Congress  may  ex- 
empt any  territory  within  its  jurisdiction  from  the 
operation  of  existing  federal  tax  laws.  The  Con- 
stitution prescribes  that  direct  taxes,  which  include 
taxes  on  land^  and  incomes,^  "shall  be  apportioned 
"among  the  several  States  which  may  be  included 
"within  this  Union  according  to  their  respective 
"numbers,"  that  is  to  say,  according  to  their  popula- 
tion. But  when  Congress  levies  a  direct  tax  in  the 
States  it  is  not  obliged  to  extend  it  to  outlying  ter- 
ritory, though  it  may  do  so  in  any  division  in  which  a 
census  has  been  taken. ^ 

Direct  federal  taxes  are  only  of  theoretical  interest. 
Practically,  they  are  excluded  from  the  federal  bud- 

'  See  Hylton  v.  U.  S.,  3  Dallas  171. 

-Pollock  V.  Farmers'  Loan  &  Trust  Co.,  157  U.  S.  429;  158 
U.  S.  601. 

■'  Loughborough  v.  Blake,  4  Wheaton  317. 


86  LAW  AND  POLICY  OF  ANNEXATLON 

get  because  the  rule  of  apportionment  precludes  their 
being  levied  with  substantial  justice. 

Regarding  indirect  taxes,  which  are  the  main 
sources  of  federal  revenue,  we  are  bound  by  the  con- 
stitutional mandate  that  all  "  duties,  imposts,  or  ex- 
"  cises  shall  be  uniform  throughout  the  United  States," 
and,  as  I  have  shown  that  this  means  uniform  through- 
out the  territory  within  the  jurisdiction  of  Congress, 
the  only  question  of  present  interest  is  whether  ex- 
emption of  a  section  of  this  territory  from  an  indirect 
tax  would  render  unlawful  its  collection  elsewhere. 
Certainly  not  where  territory  acquired  after  the  pas- 
sage of  a  tax  law  is  exempt  from  its  operation  simply 
because  no  provision  for  collection  has  been  made. 
Doubtless,  there  is  a  moral  obligation  to  collect 
current  duties,  imposts,  and  excises  in  annexed  terri- 
tory as  soon  as  possible,  but  it  would  be  absurd  to 
hold  that  a  refusal  by  a  President  to  collect  according 
to  the  California  precedent,  or  a  delay  on  the  part  of 
Congress,  perhaps  unavoidable,  or  even  a  deliberate 
abstention  as  in  the  present  case,  would  invalidate 
tax  laws  which,  when  enacted,  operated  uniformly 
throughout  the  United  States.  No  one  has  had  the 
temerity  to  suggest  that  an  importer  in  New  York 
may  recover  duties  paid,  because  like  duties  are  not 
collected  in  Manila,  or  that  an  estate  in  New  York 
may  escape  the  inheritance  tax,  because  it  is  not 
collected  in  Porto  Rico. 

Should  Congress  levy  a  new  federal  duty,  impost, 
or  excise,  and  exempt  property  in  our  new  posses- 
sions from  its  incidence,  the  question  would  be 
presented  squarely  whether  the  rule  of  uniformity  is 


THE  APPLICATION  OF  THE    CONSTITUTION  87 

satisfied  by  a  law  prescribing  a  tax  uniform  wherever 
imposed,  or  whether  it  exacts  imposition  everywhere 
in  order  to  warrant  collection  anywhere.  Lately,  the 
Supreme  Court  was  urged  to  declare  the  federal  in- 
heritance tax  invalid  on  the  ground  that  Congress 
had  not  provided  for  its  collection  in  the  District  of 
Columbia,  but  the  Court,  "  without  attempting  to  de- 
"termine  whether  the  necessary  construction  of  the 
"statute  would  require  the  inclusion  of  the  District 
"  of  Columbia  within  its  terms,  aside  from  any  special 
"provision  bearing  on  the  question,"  found  that  a 
section  of  the  act  covered  the  District  by  necessary 
implication.^  Note  that  the  Court  did  not  contem- 
plate the  possibility  of  a  deliberate  exemption,  but 
suggested  the  very  different  question  whether  an  in- 
direct tax  law  must  be  construed  so  as  to  embrace 
all  territory,  and  only  refused  to  discuss  it  because  a 
specific  provision  of  the  act  sufficiently  designated 
the  District  of  Columbia.  I  am  satisfied  that  should 
the  Court  deal  with  a  tax  law  purporting  to  exempt 
territory  it  must  either  ignore  the  incidental  pur- 
pose of  Congress  by  declaring  the  exemption  to 
be  ineffective,  or  defeat  the  main  purpose  by  annul- 
ling the  law  because  of  its  lack  of  uniformity;  "  be- 
"  cause,"  says  Chief  Justice  Marshall,  "it  is  admitted 
"  that  the  Constitution  not  only  allows,  but  enjoins, 
"  the  government  to  extend  the  ordinary  revenue  sys- 
"tem  to  this  District"^  —  that  is,  the  District  of  Co- 
lumbia; and  this  injunction  applies  as  well  to  all 
United  States  territory. 

1  Knowlton  v.  Moore,  178  U.  S.  41,  106. 

-  Loughborough  v.  Blake,  5  Wheaton  317,  325. 


88  LAW  AND  POLICY  OF  ANNEXATION 

Having  found  that  the  failure  to  provide  for  the 
collection  of  certain  current  federal  taxes  does  not 
vitiate  the  Porto  Rico  system  itself,  or  react  destruc- 
tively upon  federal  tax  laws,  we  will  examine  its 
pretensions  as  a  law  framed  for  the  purpose  of  raising 
local  revenue. 

The  United  States  having  the  power  to  acquire 
and  govern  territory.  Congress  must  be  competent  to 
provide  means  for  administering  it,  and  to  this  end 
it  may  impose  local  taxes,  either  directly  or  through 
local  authorities  acting  under  its  supervision.  The 
result  is  that  political  districts  beyond  the  States  are, 
like  the  States,  subject  to  a  double  system  of  taxa- 
tion, federal  and  local,  the  difference  being  that  in 
the  latter  case  the  separate  taxes  are  imposed  by 
two  governments.  Federal  and  State,  while  in  the 
former  they  are  imposed  by  the  Federal  Government 
acting  in  two  capacities. 

In  imposing  these  local  taxes,  whether  directly,  as 
in  Alaska,  or  through  the  agency  of  a  local  govern- 
ment, as  in  New  Mexico,  Congress  is  free  from 
certain  constitutional  restraints  which  affect  it  in 
levying  federal  taxes.^  Direct  taxes  are,  as  we  have 
seen,  practically  excluded  from  the  federal  budget, 
but  they  appear  in  the  budgets  of  outlying  districts, 
where  the  rule  of  apportionment  does  not  apply: 
Lands  in  the  city  of  Washington  and  in  New  Mex- 
ico are  taxed  for  local  purposes  on  independent  lines. 
Excises  imposed  for  the  common  defense  and  gen- 
eral welfare  of  the  United  States  must  be  uniform, 
but  they  may  vary  widely  when  levied  for  local  pur- 
poses :   A  wholesale  liquor  dealer  pays  a  license  tax 

^See  Gibbons  v.  District  of  Columbia,  ii6  U.  S.  404. 


THE  APPLICATION  OF  THE    CONSTITUTION  89 

of  $100  in  New  Mexico,^  and  $250  in  the  city  of 
Washington.'-  But  a  tax  proposed  for  territorial  pur- 
poses may  suggest  constitutional  restrictions  which 
cannot  be  dismissed  by  calling  the  tax  a  local  one, 
especially  when  it  is  to  be  levied  upon  commerce 
beginning  or  ending  beyond  the  boundaries  of  the 
Territory;  and  some  of  the  duties  of  the  Porto  Rico 
Act  fall  within  this  category. 

The  duties  of  the  ofeneral  tariff  law  which  are 
levied  on  foreign  imports  into  Porto  Rico,  and  ap- 
plied to  local  uses,  are  not  objectionable :  Por  here 
the  act  really  extends  the  general  law  to  the  island, 
and,  at  the  same  time,  appropriates  specifically  the 
revenue  collected  therein. 

The  duties  collected  in  Porto  Rico  on  imports 
from  our  mainland  are  local  in  purpose,  and  they  are 
levied  by  Congress  acting  as  a  local  legislature ; 
but  because  their  imposition  does,  in  fact,  create 
within  the  United  States  a  peculiar  customs  district 
in  respect  of  internal  commerce,  it  contravenes  a  pur- 
pose of  the  uniformity  clause  of  the  Constitution. 

The  duties  collected  on  our  mainland  on  imports 
from  Porto  Rico  are  not  local  taxes.  They  are  not 
imposed  or  collected  in  the  island:  Nor  could  Con- 
gress authorize  a  local  government  to  impose  or 
collect  them  here.  Their  appropriation  to  the  use  of 
Porto  Rico  does  not  make  them  local  taxes.  The 
imposition  and  the  appropriation  of  taxes  are  dis- 
tinct acts,  however  closely  they  may  be  joined  in  a 
single  statute,  and  the  quality  of  a  federal  tax  is  as 
plainly  impressed  upon  these  duties  as  though  they 

1  Compiled  Laws,  1897,  Sec.  4122. 

2  2  Supp.  R.  S.,  p.  115. 


90  LAW  AND  POLICY  OF  ANNEXATION 

were  collected  under  a  general  tariff  law  and  their 
proceeds  granted  afterward  to  Porto  Rico  by  an  ap- 
propriation act.  Being  federal  duties  they  are  invalid 
because  not  "uniform  throughout  the  United  States." 
Beine  invalid,  the  Porto  Rico  tax  scheme  fails  to 
legitimate  the  dearest  purpose  of  its  promoters  — 
the  declaration  of  a  federal  power  to  prevent  outly- 
ing possessions  from  competing  in  what  is  called  our 
"home  market." 

The  duty  of  five  cents  per  pound  collected  in  Porto 
Rico  upon  all  importations  of  coffee  is  a  local  tax, 
evidently  imposed  for  protection  rather  than  revenue. 
This  tariff  tax  of  local  benefit  and  application  is,  I 
believe,  the  first  in  our  history ;  certainly  none  has 
been  scrutinized  by  our  courts.  The  Constitution 
expressly  provides  for  tariffs  of  federal  benefit  only ; 
for  while  a  State  may  be  specially  permitted  to  lay 
duties  on  imports,  it  must  pay  the  net  proceeds  into 
the  federal  treasury.^  The  imposition  of  this  special 
tax  differentiates  the  ports  of  the  island  from  those 
of  our  mainland,  and  I  have  a  strong  impression  that 
all  customs  taxes,  wherever,  or  for  whatever  purpose 
levied,  must  be  judged  by  the  federal  rule  of  uniform- 
ity, because  they  affect,  necessarily,  the  commerce 
of  the  republic  which,  excepting  trade  carried  on  within 
the  several  States  and  Territories,  is  made  by  the 
Constitution  a  matter  of  exclusive  federal  concern. 

There    is    bitter    opposition    to    applying    to    the 

Philippines  the  constitutional  rule  of  uniform    tariff 

taxes.     It  is  asserted  that  Congress  cannot  impose 

uniform  duties  on  foreign  imports  that  will  be  equally 

1  See  Constitution,  Art.  I,  Sec,  lo. 


THE  APPLICATION  OF  THE    CONSTITUTION  91 

fair  to  the  islands  and  to  the  mainland  ;  but  this 
suggests  merely  a  phase  of  the  persistent  tariff 
controversy.  Doubtless  the  new  phase  presents  new 
difficulties,  yet  recalling  that  one  tariff  act  drove 
South  Carolina  to  the  edge  of  rebellion,  and  that  an- 
other led  Louisiana  to  the  Treasury  for  sugar  boun- 
ties, we  need  not  apprehend  more  extreme  results 
from  extending  our  revenue  system  to  the  Philippines. 
Free  trade  between  the  Philippines  and  Porto 
Rico  and  the  mainland  may  affect  important  agricul- 
tural interests  here.  Should  Cuba  be  annexed, 
notwithstanding  our  promise,  the  disturbance  will 
be  more  serious.  If  manufactures  shall  be  estab- 
lished in  the  islands  the  wave  of  disturbance  may 
cover  a  wider  area.  But  these  incidents  of  annexa- 
tion cannot  influence  the  interpretation  of  the 
Constitution. 

The  Commercial  U^iity  of  the  United  States 

In  anticipation  of  the  possible  range  of  this  great 
question  of  commerce  with  annexed  territory  let  us 
inquire  whether  protection  of  the  so-called  "home 
"market,"  being  unattainable  through  invidious 
tariffs,  may  be  secured  by  direct  prohibition,  by  em- 
bargo :  A  method  harsher  in  sound,  yet  not  more 
potent  than  taxation  ;  needlessly  brutal,  perhaps,  in 
present  circumstances,  yet  likely  to  find  apologists 
should  we  annex  land  crowded  with  workmen  eager 
to  sell  their  cheap  wares  in  our  great  market.  The 
answer  depends  on  the  extent  of  the  federal  power  to 
"regulate  commerce"  conferred  by  the  Constitution 
upon  Congress  in  respect  of  commerce  "with  foreign 


92  LAW  AND  POLICY  OF  ANNEXATIOJST 

"  nations,  and  among  the  several  States,  and  with 
"the  Indian  tribes."  Domestic  territory  beyond  the 
States  is  not  mentioned,  but  as  there  is  commerce 
between  this  country  and  the  States,  and  as  Con- 
gress, the  supreme  legislature,  must  have  some 
power  over  it,  we  find  no  difficulty  in  defining  this  to 
be  neither  more  nor  less  than  a  power  "to  regulate."^ 

As  I  draw  a  distinction  between  the  scope  of  the 
federal  power  as  it  is  applied  to  international  and 
Indian,  or  to  interstate  commerce,  it  is  material  to 
determine  whether  commerce  between  the  Terri- 
tories and  the  States  is  to  be  distinguished  from,  or 
likened  to  one  of  the  specified  subjects.  Certainly 
this  commerce  should  not  be  set  apart,  for  whatever 
classification  is  warranted  by  the  Constitution  is 
based  on  a  difference  between  trade  in  some  sense 
foreign,  and  domestic  trade.  Now  this  commerce  is 
essentially  domestic,  being  the  intercourse  between 
the  States  and  the  territory  which  is  their  "common 
"property"  and  a  part  of  the  United  States.  For 
this  reason,  it  must  be  classed  with  commerce  between 
the  States,  so  I  shall  substitute  for  "interstate  com- 
"  merce  "  the  term  "domestic  commerce." 

Many  years  ago  Judge  Story  inquired:  "Can  Con- 
"  gress,  under  the  power  to  regulate  commerce  among 
"the  States,  prohibit  the  transportation  or  export  of 
"goods  or  products  from  one  State  to  another? 
"■  Ex.  gratia,  can  Congress  prohibit  the  exportation 
"  of  slaves  from  one  State  to  another  for  sale  ?  "  ^ 

1  See  Stoughtenbiirgh  v.  Hennick,  129  U.  S.  141. 

-Commentaries,  2d  Ed.,  Sec.  1075,  note  3.  In  considering  this 
question  I  utilize  parts  of  an  article  on  Federal  Trust  I>egislation, 
contributed  to  the  Political  Science  Quarterly  of  December,  1897. 


THE  APPLICA  TION  OF  THE    CONSTITUTION  93 

The  specific  question  is  now  of  historic  interest 
only,  and  I  think  it  will  be  agreed  that  principles  of 
law  which  might  have  been  urged  against  maintain- 
ing a  constitutional  right  of  free  trade  in  human 
beings  are  not  applicable  to  a  commerce  from  which 
the  slave  has  disappeared  —  if,  indeed,  he  ever  actu- 
ally figured  in  federal  jurisprudence  as  an  article  of 
commerce.^ 

In  considering  Judge  Story's  general  question  it  is 
not  necessary  to  determine  whether  Congress  may 
forbid  domestic  traffic  in  articles  deemed  to  be  essen- 
tially prejudicial  to  public  health  or  morals,  though 
it  may  be  noted  that,  perhaps,  in  this  regard  Congress 
has  more  power  over  commerce  between  the  Terri- 
tories and  the  States,  than  over  that  between  the 
States,  since  in  the  Territories  it  possesses,  unques- 
tionably, that  power  of  police  which  in  the  States  ap- 
pears to  be  vested  solely  in  the  local  governments. 
Nor  is  it  material  to  this  discussion  to  consider  spe- 
cially the  power  of  interdiction  asserted  by  Congress 
in  the  so-called  Anti-Trust  Act  of  1890,  authorizing 
the  seizure  of  trust-made  articles  in  course  of  inter- 
state transit.  Our  precise  question  is  whether  Con- 
gress is  competent  to  divide  the  United  States  into 
sections  by  drawing  a  line  through  any  part,  and  for- 
bidding commerce  between  them,  either  generally  or 
in  specific  articles.  In  1807  Congress  laid  an  em- 
bargo upon  foreign  trade,  and  described  the  measure 
"  as  neither  hostile  in  its  character  nor  as  justifying  or 
"inciting  or  leading  to  hostility  to  any  nation  what- 
"ever."^     The  constitutionality  of  the  Embargo  Act 

1  See  Groves  v.  Slaughter,  15  Peters  449,  506. 

-U.  S.  V.  The  Brig  WiUiam,  2  Hall's  Law  Journal  255. 


94  LAW  AND  POLICY  OF  ANNEXATION 

was  attacked,  but  was  sustained  in  a  District  Court ; 
and  some  years  later  Justice  Marshall  referred  to 
"  the  universally  acknowledged  power  of  the  Govern- 
"ment  to  impose  embargos,"  described  them  as 
"sometimes  resorted  to,  without  a  view  to  war,  and 
"with  a  single  view  to  commerce,"  and  said  of  the 
act  of  1807:  "By  its  friends  and  its  enemies  it  was 
"treated  as  a  commercial,  not  as  a  war,  measure."^ 
And  Judge  Story  said  :  "  If  it  could  be  classed  at  all  as 
"flowing  from  or  incident  to  any  of  the  enumerated 
"  powers,  it  was  that  of  regulating  commerce."  ^  Now 
the  power  conferred  in  respect  of  foreign,  Indian, 
and  interstate  or  domestic  commerce  is  in  each  case 
"to  regulate,"  and  from  this  identity  in  the  terms  of 
the  grants  it  has  been  assumed  that  the  three  powers 
are  coextensive.  But  it  will  not  be  difficult  to  show 
that  the  power  over  domestic  commerce  is  not  identi- 
cal with  the  power  over  commerce  with  foreign 
nations,^  and  with  the  Indians.  The  assertion  of 
identity  between  the  powers  over  domestic  and  In- 
dian commerce  may  be  dismissed  almost  summarily. 
The  Indian  tribes  are,  in  the  language  of  Chief  Justice 
Marshall  "  in  a  state  of  pupilage.  Their  relation  to 
"the  United  States  resembles  that  of  a  ward  to  its 
guardian.  They  look  to  our  Government  for  pro- 
tection ;  rely  upon  its  kindness  and  power;  appeal 
"to  it  for  relief  to  their  wants;  and  address  the 
"President   as  their  great  father."*     Whatever  re- 

1  Gibbons  v.  Ogden,  9  Wheaton  i,  192.    See  also  Legal  Tender 
Cases,  12  Wallace  457,  550. 

-  Commentaries,  Sec.  1289.     See  also  The  Federalist,  No.  11. 

■'  See  Madison's  Works,  IV,  15;  Groves  v.  Slaughter,  15  Peters 

449'  505- 

'Cherokee  Nation  v.  Georgia,  5  Peters  i,  17. 


THE  APPLICATION  OF  THE   CONSTITCTIOA^  95 

lation  the  people  of  the  United  States  may  bear  to 
the  Federal  Government,  it  is  not  this.  The  dependent 
position  of  the  Indians  justified  the  Supreme  Court 
in  saying:  "As  long  as  these  Indians  remain  a  dis- 
"  tinct  people,  with  an  existing  tribal  organization, 
"recognized  by  the  political  department  of  the  gov- 
"  ernment.  Congress  has  the  power  to  say  with  whom 
"  and  on  what  terms  they  shall  deal,  and  what  articles 
"shall  be  contraband."^  Whatever  power  Congress 
may  have  over  domestic  commerce,  it  is  not  this.  It 
is  a  fair  rule  of  interpretation  that,  when  powers  in 
respect  of  several  subjects  are  assumed  to  be  coex- 
tensive merely  because  of  identity  in  the  terms  of  the 
grants,  the  differentiation  of  one  subject  discredits 
the  assumption  as  to  the  rest.  But  we  need  not  stop 
here ;  for,  in  point  of  fact,  the  assumed  parallel  be- 
tween domestic  and  foreign  commerce  is  quite  as 
illusory  as  in  the  case  of  Indian  trade,  and  for  the 
same  reason  —  a  radical  difference  in  the  status  of 
the  parties. 

The  United  States  deal  with  a  foreign  nation  as 
one  sovereign  with  another.  They  have  no  connec- 
tion, and,  apart  from  the  obligation  of  treaties,  no 
conventional  relation  with  the  foreign  state.  Their 
attitude  toward  other  nations  is  dictated  by  policy, 
tempered  in  some  directions  by  treaty  and  inter- 
national law ;  and  they  may  discriminate  between 
them  —  inclining  toward  one  and  away  from  another 
—  as  their  interests  require. 

If  Congress  may  interdict  foreign  commerce,  it  is 
by  way  of  carrying  out  the  policy  of  a  sovereign  — 
the  United  States — in  opposition  to,  or  disregard  of 
1  U.  S.  V.  43  Gallons  of  Whisky,  93  U.  S.  188,  195. 


96  LAW  AND  POLICY  OF  ANNEXATION 

the  policies  of  other  sovereigns  to  whom  it  owes  no 
legal  duty  in  the  premises. 

Obviously  a  right  to  interdict,  which  may  inhere  in 
the  power  to  regulate  commerce  with  foreign  or 
dependent  nations  cannot  be  attributed  by  analogy 
to  the  power  to  regulate  our  own.  Because  we  may 
forbid  intercourse  with  a  foreign  nation,  essentially 
an  unfriendly  act  despite  any  protestation  to  the 
contrary,  and  forbid  private  dealings  with  Indians  in 
order  to  protect  childish  wards  from  the  rapacity  of 
traders,  it  does  not  follow  that  we  may  turn  the 
weapon  of  embargo  against  our  own  countrymen, 
or  treat  them  as  children  of  a  "great  father." 

Federal  power  over  domestic  commerce  is  distin- 
guished from  the  neighbor  subjects  of  foreign  and 
Indian  trade,  and  from  that  war  power  which  justified 
non-intercourse  legislation  during  our  Civil  War,^ 
because  it  relates  to  traffic  among  the,  presumably, 
loyal  people  of  a  common  country.  It  must  be  consid- 
ered on  its  own  merits.  "The  Constitution,"  says 
the  Supreme  Court,  "  does  not  provide  that  inter- 
"  state  commerce  shall  be  free,  but,  by  the  grant  of 
"this  exclusive  power  to  regulate  it,  it  was  left  free, 
"except  as  Congress  might  impose  restraints."^ 
This  means  that  domestic  commerce  is  not  free  in 
the  sense  of  being  private  enterprise  wholly  beyond 
federal  supervision.  Federal  power  to  regulate  com- 
merce is  not  limited  to  annulling  State  laws,  and 
enjoining  private  acts  that  would  hinder  it.  This, 
the  passive  side  of  the  power,  is  maintained  in  the 
courts.     The  active  side  is  expressed  in  legislation, 

'  See  The  Reform,  3  Wallace  617. 

2  U.  S.  V.  E.  C.  Knight  Co.,  156  U.  S.  i,  1 1. 


THE  APPLICATION  OF  THE    CONSTITUTION  97 

and,  while  its  range  has  not  been  definitely  estab- 
lished, the  nature  of  the  subject  must  preclude  its 
being  extended  to  the  point  of  interdiction.  "  It  has 
"been  said,"  says  Chief  Justice  Marshall,  "that  the 
"  Constitution  does  not  confer  the  right  of  inter- 
"  course  between  State  and  State.  That  ricrht 
"  derives  its  source  from  those  laws  whose  authority 
"  is  acknowledged  by  civilized  man  throughout  the 
"  world.  This  is  true.  The  Constitution  found  it 
"an  existing  right,  and  gave  to  Congress  the  power 
"to  regulate  it."^  The  last  sentence  would  mean 
something  very  different  were  it  altered  to  read : 
"The  Constitution  found  it  an  existing  right,  and 
"gave  to  Congress  the  power  to  interdict  it";  and 
this  confused  proposition  would  so  pervert  the  law 
as  to  defeat  its  true  and  most  admirable  purpose. 

The  right  of  intercourse  mentioned  by  Marshall 
obtained  among  communities  practically  indepen- 
dent, for  the  Articles  of  Confederation  were  but 
"  a  rope  of  sand,"  and  it  was  because  intercourse  was 
seriously  hampered  by  States  exercising  their  sov- 
ereign powers  of  restriction  that  this  clause  was 
inserted  in  the  Constitution.  In  fact,  the  need  of 
commercial  unity  was  the  greatest  incentive  to  the 
establishment  of  "  the  more  perfect  Union  "  assured 
by  the  Constitution,  The  States  did  not  transfer 
to  Congress  the  sovereign  power  of  restriction 
which  each  possessed.  They  renounced  these 
powers,  left  them  in  the  air,  and  authorized  Con- 
gress to  maintain  the  freedom  of  trade  established  by 
their  renunciation.  To  regulate  domestic  commerce, 
then,   is  to  facilitate  an  intercourse   placed    beyond 

1  Gibbons  v.  Ogden,  9  Wheaton  i,  211. 

7 


98  LAW  AND  POLICY  OF  ANNEXATION 

reach  of  prohibition,  and,  while  regulations  may  in 
fact  involve  some  restraint  upon  the  conduct  of 
particular  intercourse,  they  have  their  warrant  and 
purpose  in  the  facilitation  of  all  intercourse. 


VALUE    OF    THE    CONSTITUTION    IN    NEW    TERRITORY 

In  affirming  the  authority  of  the  Constitution  in 
the  Philippines,  I  am  far  from  anticipating  the  trans- 
formation of  an  Asiatic  dependency  of  Spain  into  a 
well-ordered  section  of  the  United  States  by  any 
magical  power  of  written  law.  Constitutional  rule 
will  not  prevail  throughout  the  islands  until  the 
authority  of  the  United  States  shall  be  as  supreme 
in  fact  as  it  is  in  theory. 

The  gap  between  fact  and  theory,  so  marked  in 
the  Philippines,  is  not  a  novel  circumstance  in  our 
history.  The  influence  of  the  Constitution  spread 
slowly  throughout  the  vast  domains  we  have  annexed 
from  time  to  time  ;  isolated  communities  made  their 
own  laws ;  sparsely  peopled  regions  had  none.  A 
Southern  Confederacy  once  defied  the  Constitution, 
and,  temporarily,  suspended  its  active  authority 
throughout  a  wide  area ;  yet  the  Supreme  Court 
said  of  an  insurrectionary  State  :  "  She  never  escaped 
"her  obligations  to  that  Constitution,  though  for  a 
"while  she  may  have  evaded  their  enforcement."^ 

These  untoward  conditions  illustrate  the  general 
proposition  that  constitutional  guaranties  are  not 
thoroughly  efficient  unless  persons  injured  by  their 
violation   have    recourse  to  competent  tribunals  for 

J  Keith  V.  Clark,  97  U.  S.  454,  461. 


THE  APPLICATION  OF  THE    CONSTITUTION  c^c^ 

redress.  How  far  such  courts  as  may  now  sit  in  the 
islands  are  competent  I  do  not  discuss,  for  it  may  be 
admitted  that  until  Congress  shall  authorize  suitable 
tribunals  constitutional  rights  will  receive  imperfect 
protection.  But  this  admission  must  be  made  in 
regard  to  the  whole  republic.  The  only  court 
named  in  the  Constitution  is  the  Supreme  Court, 
whose  original  jurisdiction  is  strictly  confined  to 
"all  cases  affecting  ambassadors,  other  public  minis- 
"  ters  and  consuls,  and  those  in  which  a  State  shall 
"be  a  party." ^  What  inferior  courts  there  shall 
be,  what  their  jurisdiction,  when  and  how  their 
judgments  involving  the  questions  mentioned  in  the 
Constitution  as  reviewable  by  the  Supreme  Court 
shall  be  carried  to  this  tribunal,  are  determinable  by 
Congress,  which  cannot  be  forced  to  create  a  court, 
or  directed  in  defining  its  jurisdiction,  or  prevented 
from  abolishing  it.  Generally  speaking,  the  people 
of  the  United  States  depend  upon  the  facilities  af- 
forded by  the  Judiciary  Acts  for  the  orderly  enforce- 
ment of  their  rights,  and  in  saying  this  we  suggest 
the  high  office  of  courts  wherever  justice  is  truly 
respected. 

Before  leaving  the  subject  of  the  jurisdiction  of 
courts  it  will  be  profitable  to  note  a  marked  differ- 
ence between  the  American  and  English  systems. 
The  Judicial  Committee  of  the  Privy  Council 
affirmed  an  ancient  rule  when  they  said  in  Bishop 
Colenso's  case:  "It  is  the  settled  prerogative  of  the 
"  British  Crown  to  receive  appeals  in  all  colonial 
"causes."^     The    royal    prerogative,    however,    has 

1  See  Marbury  v.  Madison,  i  Cranch  137. 

'-  The  Lord  Bishop  of  Natal,  3  Moore  P.  C.  C,  N.  S.  115. 


loo         LAW  AND  POLICY  OF  ANNEXATION 

long  been  exercised  in  accordance  with  the  judgment 
of  the  Judicial  Committee,  a  court  selected  from  the 
Council  according  to  rules  established  by  Parlia- 
ment. This  court  of  appeal  has  a  broad  and  varied 
jurisdiction.  For  example,  it  will  entertain  an 
appeal  from  the  act  of  a  colonial  governor  in  impris- 
oning an  African  chief,^  from  the  order  of  a  colonial 
court  denying  certain  powers  and  privileges  to  a 
colonial  legislature,^  from  the  judgment  of  a  police 
magistrate  in  a  petty  colony ;  ^  and  it  will  receive 
appeals  in  criminal  cases  generally  whenever  it 
appears  that  "by  a  disregard  of  the  forms  of  legal 
"process,  or  by  some  violation  of  natural  justice  or 
"otherwise,  substantial  and  grave  injustice  has  been 
"done,"*  Under  the  British  system,  then,  the  sub- 
jects of  the  Queen  in  all  parts  of  her  dominions  may, 
in  certain  cases,  appeal  for  redress  of  injuries  to  a 
tribunal  whose  territorial  jurisdiction  expands  with 
the  expansion  of  the  empire.  Furthermore,  the 
courts  at  Westminster  have  a  common  law  right  to 
grant  the  writ  of  habeas  corpus  :  "which  writ,"  said 
Chief  Justice  Cockburn,  "  in  the  absence  of  any  pro- 
"  hibitive  enactment,  goes  to  all  parts  of  the  Queen's 
"  dominions."^ 

Our  Supreme  Court  has,  as  we  have  seen,  an 
original  jurisdiction  so  restricted  as  to  exclude  all 
citizens  of  the  repubHc  from  invoking  its  protection 
as  a  constitutional  right.      Especially  noticeable,   in 

1  Sprigg  V.  Sigcau  [1897],  A.  C.  238. 

2  Speaker,  etc.,z^.  Glass,  L.  R.  3  P.  C.  C,  560. 

3  Falkland  Islands  Co.  v.  The  Queen,  i   Moore  P.  C.  C,  N.  S. 
299. 

4  Dillet's  Case,  12  App.  Cas.  459. 
^Anderson's  Case,  3  Ellis  v.  Ellis  487,  494. 


THE  APPLICATION  OF  THE    CONSTITUIION  loi 

contrast  with  English  practice,  is  its  inabiHty  to 
grant  the  writ  of  habeas  corpus  in  virtue  of  organic 
power ;  ^  except,  of  course,  in  cases  affecting  ambassa- 
dors, other  public  ministers,  and  consuls.^  The 
appellate  jurisdiction  of  the  Supreme  Court,  includ- 
ing the  matter  oi  habeas  corpus,  is  conferred  by  Con- 
gress, and  it  can  hear  appeals  from  such  courts  only 
as  Congress  shall  designate.  The  designation  of 
these  courts  in  annexed  territory  is,  therefore,  a  con- 
dition precedent  to  the  opening  of  the  Supreme 
Court  to  the  inhabitants,  to  their  enjoyment  of  the 
means  of  redress  accorded  to  the  rest  of  the 
community. 

After  the  authority  of  the  United  States  shall  have 
been  established  in  the  Philippines,  federal  courts 
opened,  and  necessary  laws  enacted,  after  the  gov- 
ernment shall  have  done  its  part  toward  confirming 
the  rule  of  the  Constitution,  the  islanders  must  learn 
to  live  up  to  it  before  it  can  mean  to  them  what 
it  means  to  us.  We  do  not  hand  down  the  Constitu- 
tion to  the  Filipinos  in  the  anticipation  of  an  early 
acceptance  of  its  principles.  Indeed,  the  unanimous 
opinion  that  the  islands  should  never  be  admitted  to 
statehood  affirms  our  conviction  that  the  islanders 
ought  never  be  trusted  with  a  share  of  the  political 
power  of  the  republic.  We  do  not  believe  the 
enthusiastic  prophecy  with  which  the  First  Philip- 
pine Commission  closes  its  preliminary  report: 
"When  peace  and  prosperity  shall  have  been  estab- 

^  BoUman's  Case,  4  Cranch  75,  94;  Yerger's  Case,  8  Wallace 
85,  87. 

-  See  Siebold's  Case,  100  U.  S.  371,  374. 


I02         LAW  AND  POLICY  OF  ANNEXATION 

"  lished  throughout  the  archipelago,  when  education 
"  shall  have  become  general,  then,  in  the  language 
"of  a  leading  Filipino,  his  people  will,  under  our 
"guidance,  'become  more  American  than  the  Ameri- 
"  '  cans  themselves.'  " 


CONCLUSIONS    IN    REGARD    TO    THE    CONSTITUTION 

A  hostile  environment  does  not  annul,  though  it 
may  impair,  the  efficiency  of  the  Constitution.  In 
the  Philippine  Archipelago,  as  in  all  United  States 
territory,  the  Constitution  confers  rights  upon  the 
ignorant  and  the  unwilling  as  well  as  upon  those 
who  value  them ;  enjoins  our  public  servants  to 
respect  it  always ;  justifies  resistance  to  forbidden 
acts ;  and,  in  theory  of  law,  renders  void  every  com- 
mand and  illegal  every  act  disregarding  its  prohibi- 
tions. For  by  the  law  of  this  Constitution  all  land 
under  the  sovereignty  of  Congress  is  one  country ; 
all  people  within  its  jurisdiction  are  one  people,  who 
enjoy  life,  liberty,  and  property  of  constitutional 
right  without  regard  to  which  side  of  a  boundary 
line  between  State  and  Territory  or  of  lines  of  lati- 
tude or  longitude  they  happen  to  live ;  and  these 
lines  cannot  be  made  a  hindrance  to  the  course  of 
legitimate  commerce. 

A  few  months  ago  this  statement  was  generally 
accepted,  and  it  would  not  be  attacked  to-day  had  the 
Treaty  of  Paris  limited  our  acquisitions  to  American 
territory.  It  is  the  circumstance  of  conquest  in  Asia, 
with  its  suppressed  but  inevitable  suggestion  of 
further  aggrandizement  in   the   East,  that  provokes 


THE  APPLICATION  OF  THE   CONSTITUTION  103 

the  assertion  that  at  last  we  have  gone  beyond  the 
proper  sphere  of  the   Constitution. 

Assuming,  for  the  sake  of  argument,  that  this  asser- 
tion is  true,  or  at  all  events  that  it  expresses  the  deliber- 
ate wish  of  the  American  people,  how  shall  we  deal 
with  the  question  it  presents  ?  Certainly  not  by  ac- 
cepting an  injurious  rule  as  a  perpetual  obligation,  or 
by  refusing  to  admit  that  the  Constitution  must  come 
at  last  to  reflect  a  matured  public  opinion.  If  the 
application  of  the  Constitution  in  the  Philippines  will 
cause  serious  embarrassment,  the  approbation  of  law 
will  not  make  it  endurable.  Or,  if  the  American 
people  are  unwilling  to  treat  the  islands  as  United 
States  territory  in  any  circumstances,  no  rule  of  law 
will  long  compel  them.  I  am  convinced  that  either 
event  should  move  us  to  relinquish  sovereignty  over 
the  country  we  cannot,  or  will  not  govern  according 
to  our  Constitution.  The  taking  over  of  millions  of 
Asiatics  who  are  deemed  unfit  for  fellowship  must 
increase  our  burdens  without  bringing  new  strength 
to  bear  them;  and  we  may  yet  need  the  strength  that 
inheres  only  in  a  people  united  by  the  bonds  of  sym- 
pathy, and  of  equality  before  the  law.  '| 

Withholding  the  Constitution  from  the  Philippines 
must  tend  to  lessen  respect  for  it  here.  It  is  impos- 
sible that  we,  who  have  maintained  the  necessity  of 
constitutional  restraints  for  the  ordering  of  our  in- 
telligent and  self-governing  community,  should  disre- 
gard them  anywhere  without  weakening  our  faith  in 
their  virtue. 

Should  the  Constitution  be  denied  to  the  Philip- 
pines upon  any  pretext  a  drawback  from  indiscrim- 
inate expansion  will  be  removed.     While  acquisition 


I04         LAW  AND  POLICY  OF  ANNEXATION 

of  territory  means  the  enlargement  of  the  United 
States  and  the  reception  of  new  citizens,  while  Con- 
gress must  govern  all  country  within  its  jurisdiction 
as  a  social  and  commercial  unit,  the  American  people 
will  not  covet  outlying  land  if  its  acquisition  means 
fellowship  with  uncongenial  multitudes.  It  is  ob- 
jected that  any  restraint  upon  appropriating  territory 
as  spoil  of  war  will  embarrass  our  military  arm. 
Must  we  survey  land  before  invading  it,  lest  we 
stumble  upon  an  unwelcome  addition  to  the  United 
States?  Shall  we  sacrifice  the  right  to  indemnify 
ourselves  for  the  cost  of  successful  war?  Surely 
these  questions  are  not  serious.  A  wise  policy  of 
expansion  is  promoted  by  a  determination  to  gain 
desirable  territory,  not  by  a  weakness  for  seizing 
anything  within  reach.  The  theory  that  conquest 
entails  perpetual  responsibilities  is,  too  often,  merely 
the  conqueror's  excuse  for  keeping  coveted  land. 
As  for  indemnity,  it  is  gained  directly  by  exactions 
of  money,  or,  indirectly,  by  retaining  desirable  land. 
It  is  a  contradiction  in  terms  to  say  that  it  may  be 
gained  by  keeping  undesirable  land. 

Recognition  of  the  Constitution  in  the  Philippines 
will  not  check  the  expansion  of  our  republic  :  It  will 
tend  to  guide  the  course  of  expansion  aright. 

Should  the  above  considerations  be  overborne  by  a 
determination  to  hold  the  Philippines  as  a  subject 
province  at  all  cost,  let  the  Constitution  as  it  stands 
remain  unspoiled  by  interpretations  restricting  it  to 
the  States,  or  conditioning  its  efficacy  in  national  ter- 
ritory upon  the  pleasure  of  Congress,  or  the  treaty- 
making  body.      Let  us  frankly  admit  that  in  ruling 


THE  APPLICATION  OF  THE   CONSTITUTION  105 

without  the  restraint  of  organic  law  the  g-overnment 
would  assume  an  office  requiring  the  approval  of  im- 
perial standards  for  its  acceptance,  the  delegation  of 
imperial  powers  for  its  administration,  and  then  ap- 
prove these  standards  and  delegate  these  powers  in 
a  special  amendment  of  the  Constitution.  I  have 
seen  no  considered  suggestion  that  the  Constitution 
be  amended,  yet  it  must  come  to  this  if  the  United 
States  are  to  govern  subject  provinces  with  lawful 
and  adequate  powers.  A  short  amendment  would 
serve  to  distinguish  the  republic,  governed  under  the 
old  organic  law,  from  outlying  provinces  ruled  as 
policy  shall  dictate.  \ 

Meanwhile,  the  present  Constitution  is  the  law. 
And  to  the  objection  that  the  treatment  of  our  new 
possessions  is  one  of  those  purely  political  matters  in 
which  the  judiciary  must  follow  its  coordinate  depart- 
ments, and  not  presume  to  check  them,  I  reply  that 
the  immensity  of  the  issues  does  not  affect  the  judi- 
ciary in  determining  whether  in  fact  there  is  a  law  of 
the  land  applicable  to  a  case  at  bar.  Shall  this  suitor 
pay  a  tax  ?  Shall  that  one  be  deprived  of  liberty  ? 
These  may  be  momentous  political  questions,  without 
the  precincts  of  the  Court ;  within,  they  are  judicial 
questions. 


CHAPTER   IV 
THE    GOVERNING   OF   THE    PHILIPPINES 

The  inclusion  of  the  Philippines  within  the  boun- 
daries of  the  United  States,  and  the  aegis  of  the 
Constitution,  are  results  of  acquiring  territorial  sov- 
ereignty, and  while  this  sovereignty  is  maintained  we 
must  address  ourselves  to  practical  questions  of  gov- 
ernment and  policy  involved  in  the  administration  of 
United  States  territory.  Some  of  these  have  been 
already  considered ;  of  the  rest  I  shall  consider  only 
the  primary  questions  concerning  the  powers  of  our 
President  and  Congress,  and  our  attitude  toward 
some  of  the  principal  institutions  of  the  old  order. 

THE    POWERS    OF    THE    PRESIDENT 

Executive  Powers 

The  President  is  in  possession  of  the  Philippines, 
and  his  governing  of  them,  provisionally,  by  mili- 
tary agents  is  a  lawful  exercise  of  executive  power. 
This  government  originated  in  a  belligerent  occupa-  ' 
tion  of  foreign  territory,  and,  agreeably  to  the 
precedent  approved  by  the  Supreme  Court  in  the  1 
case  of  California,  it  was  not  dissolved  by  the  trans- 

io6 


THE   GOVERNING    OF  THE  PIflLIPPINES    107 

fer  of  the  islands  at  the  end  of  the  war,  but  continues 
until  superseded  by  Congress.^ 

The  rightful  existence  of  this  government  being 
conceded,  we  must  determine  its  powers.  The  Presi- 
dent's annual  message  of  1899  stated  that  the  gov- 
ernment of  Porto  Rico  was  maintained  by  the  Ex- 
ecutive Department  "  under  the  law  of  belligerent 
"  rio;ht,"^  and  of  course  this  statement  included  the 
Philippines,  since  both  districts  were  in  like  case. 
The  "law  of  belligerent  right"  appears  to  be,  in  this 
case,  the  will  of  the  commander-in-chief  of  the  forces 
imposed  upon  any  matter  whatever. 

Now  by  what  right  can  the  President  act  under  this 
"law"  in  any  territory  vested  in  the  United  States  by 
the  Treaty  of  Paris  ?  Belligerent  right  is  predicated 
upon  a  state  of  war.  Porto  Rico  was  then,  and 
has  remained  at  peace,  and,  in  Milligan's  case,^  Chief 
justice  Chase  declared  the  invariable  rule:  "Where 
"peace  exists  the  laws  of  peace  must  prevail."  M 
Belligerent  right  is  predicated  upon  a  state  of  formal 
war,  the  termination  of  which  has  been  declared  by 
the  Supreme  Court  to  be  a  fact  determinable  by  the 
political  department,  whose  decision  will  be  respected 
by  the  judiciary.*  Without  discussing  whether  the 
formal  war  inaugurated  by  Congress  in  the  spring 
of  1898  was  terminated,  in  point  of  law,  before  the 
exchange  of  ratifications  of  the  treaty  of  peace  on 
April    II,    1899,    it  certainly   cannot    be    prolonged 

1  Cross  V.  Harrison,  16  Howard  164,  193. 

2  Page  50. 

3  4  Wallace  2,  140. 

^The  Protector,  12  Wallace   700.     See  also  U.  S.  v.  Yorba,  i 
Wallace  412,  423. 


\\ 


io8         LAW  AND  POLICY  OF  ANNEXATION 

beyond    this   date.       This  exchange,    at    least,   was 
the    final    act    of    peace.      As    our  courts   have    no 
knowledge    of  a   state   of  war  since,  they  have   no 
reason  for  recognizing  the  law  of  belligerent  right      r 
in    the    islands.     There    is    an    insurrection    in    the  ; 
Philippines,  but  there  is  not  a  formal  war.     We  have  '; 
carefully  refrained  from  treating  the  insurgents  as  | 
belligerents.     In  fine,  the  law  of  belligerent  right  is  as  ; 
inapplicable  in  our  new  possessions  as  it  was  in  the 
like  case  of  California,  of  which  President  Polk  said: 
"  Upon  the  exchange  of  ratifications  of  the  treaty  of 
"peace  with  Mexico    .    .    .    the  temporary  govern- 
"ments  which  had  been  established  over  New  Mex- 
"ico  and  California  by  our  military  and  naval  com- 
"manders,  by  virtue  of  the  rights  of  war,  ceased  to 
"derive    any  obligatory    force  from   that   source    of 
"authority.     .     .     ."^    The  President's  governments 
in  Porto  Rico  and  the  Philippines  are  precisely  alike 
in  origin  and  powers.     Though  military,  as  distin- 
guished   from     civil    governments    established    by 
Congress,  they  are  not  to  be  administered  according 
to  the  laws  of  war.     As  in  quiet  Porto  Rico,  before 
the  passage  of  the  Government  Act,  so  now  in  the 
disturbed  Philippines   the    President  is  the  steward 
of   United    States    territory,   and  the    fact  that  this 
territory     is    under    the     jurisdiction     of    Congress, 
though  not  yet  organized  under  its  laws,  goes  far 
toward    indicating    the    real    duties,     powers,     and 
limitations  of  his  stewardship. 

The  President  is  pledged  to  uphold  the  sovereignty 
of  the  United  States  throughout  their  dominions  ;  and 

'  Messages  of  the  Presidents,  IV,  638. 


THE    GOVERNING    OF  THE  TUILIPPINES     109 

they  mag-nify  his  office  who  urge  him  to  recognize 
a  FiHpino  repubhc,  or  declare  a  protectorate,  or 
acknowledge  in  any  way  the  existence  of  a  local 
sovereign.  The  islands  are  in  his  charge,  not  at  his 
disposition. 

Of  the  strictly  military  powers  of  the  President  it 
must  be  understood  that  in  the  face  of  insurrection  he 
enjoys  precisely  the  same  authority  in  the  Philippines 
as  elsewhere  in  the  territory  of  the  United  States,  in- 
cluding"  the  ri^ht  to  call  on  the  States  for  militia 
to  serve  in  the  islands  if,  in  his  judgment,  it  be 
necessary.^ 

Although  the  authority  of  the  President  is  called 
"military,"  it  has  a  civil  side.  We  shall  see,  pres- 
ently, that  the  annexation  of  a  country  does  not  abol- 
ish all  its  old  laws  and  governmental  agencies,  and 
that  perhaps  some  laws  of  Congress  may  extend  to  it 
by  their  own  force.  The  President  is  competent  to 
enforce  these  laws  and  utilize  these  agencies  as  far 
as  circumstances  permit.  Thus  far  the  President's 
powers  are  normal,  being  wholly  of  an  executive 
nature. 

Usurpation  of  Legislative  Power 

There  remains  the  question  whether  the  President 
may  lawfully  exercise  legislative  powers  in  the  ceded 
territory  pending  action  by  Congress,  and  I  mean  by 
legislative  powers  the  enactment  of  new  laws  and  the 

1  See  Constitution,  Art.  I,  §  8;  Military  Laws  of  the  U.  S.,  §§  1256, 
1505;  Martin  v.  Mott,  12  Wheaton  19. 


no         LAW  AND  POLICY  OF  ANNEXATION 

repeal,  alteration,  or  suspension  of  old  ones,  the  ex- 
tension of  acts  of  Congress,  the  creation  of  offices, 
the  imposition  of  new  taxes  and  the  appropriation  of 
their  revenue  —  in  fine,  the  powers  of  Congress.  Sir 
William  Anson  says  of  English  practice:  "  Colonies 
"  acquired  by  conquest  or  cession  fall  at  once  under 
"  the  legislative  powers  of  the  Crown  in  Council,  sub- 
"ject  always  to  these  limitations,  that  Parliament 
"might intervene  and  make  provision  for  the  govern- 
"  ment  of  the  colony,  and  that  the  Crown  could  not 
"make  laws  'contrary  to  the  fundamental  principles' 
"  of  English  law,  nor  presumably  enforce  such  laws 
"  if  found  among  the  colonists  at  the  time  of  ces- 
"sion."^  The  power  to  legislate  for  annexed  terri- 
tory thus  vested  in  the  Crown  in  Council  is  not  enjoyed 
by  the  President  when  the  United  States  acquire  ter- 
ritory ;  it  vests  in  Congress,  whose  jurisdiction  at- 
taches at  once,^  and  within  this  jurisdiction  there  is  no 
room  for  an  executive  prerogative  of  legislation,  even 
by  the  permission  of  Congress.  "  That  Congress  can- 
"not  delegate  legislative  power  to  the  President," 
says  the  Supreme  Court,  "is  a  principle  univer- 
"  sally  recognized  as  vital  to  the  integrity  and  main- 
"tenance  of  the  system  of  government  ordained  by 
"the  Constitution."^ 

The  prohibition  against  executive  legislation  in 
United  States  territory  is  not  affected  by  the  judg- 
ment of  the  Supreme  Court  upon  the  Kearny  Code 
of  New   Mexico.     This  code    was   promulgated   by 

'  The  Law  and  Custom  of  the  Constitution,  The  Crown,  2d  Ed. 
274. 

-  See  infra,  p.  121. 

■*  Field  V.  Clark,  143  U.  S.  649,  692. 


THE   GOVERNING    OE  THE  PHILIPPINES     m 

General  Stephen  M.  Kearny  in  1846,  while  in  com- 
mand of  our  forces  in  hostile  occupation  of  New 
Mexico.  It  was  argued  that  the  code  lapsed  upon 
the  termination  of  the  belligerent  status  of  the  terri- 
tory by  its  formal  cession  to  the  United  States, 
leaving  the  old  Mexican  law  as  the  law  of  the  land. 
But  the  Court  decided  that  the  Kearny  Code  was  en- 
titled to  respect  as  the  law  in  force  at  the  date  of 
cession.^  Here  the  Court  recognized  a  code  of  purely 
executive,  indeed  of  belligerent,  origin ;  yet  its  de- 
cision is  not  an  authority  for  the  exercise  of  gen- 
eral legislative  powers  in  annexed  territory,  for 
this  is  a  part  of  the  United  States,  while  the  Kearny 
Code  was  proclaimed  in  a  foreign  land.  In  other 
words,  the  powers  of  legislation  which,  accord- 
ing to  Leitensdorfer  v.  Webb,  may  be  exercised  byi  ) 
the  President  as  commander-in-chief  of  our  forces 
in  belligerent  occupation  of  foreign  territory,  where 
Congress  has  no  jurisdiction,  are  not  enjoyed  in  the! 
United  States,  where  Congress  is  supreme.  Nor  is  I 
the  prohibition  affected  by  the  decision  in  Cross  v. 
Harrison:  After  the  ratification  of  the  treaty  ceding 
California  to  the  United  States  had  been  communi- 
cated to  our  military  governor  in  occupation  of  the 
territory,  he  ordered  that  the  duties  of  the  Tariff  Act 
should  be  collected  upon  foreign  imports,  created  the 
office  of  collector,  and  appointed  a  civilian  thereto, 
with  a  salary.  In  dismissing  a  suit  for  the  recovery 
of  duties  paid  under  protest,  the  Court  said:  "  It  has 
"been  sufficiently  shown  that  the  plaintiffs  had  no 
"right  to  land  their  foreign  goods  in  California  at 
"the  times  when  their  ships  arrived  with  them,  ex- 

^  Leitensdorfer  v.  Webb,  20  Howard  176. 


112         ZAJF  AND  POLICY  OF  ANNEXATION 

"cept  by  a  compliance  with  the  regulations  which 
"the  civil  government  were  authorized  to  enforce  — 
"■  first  under  a  war  tariff,  and  afterward  under  the 
"existing  Tariff  Act  of  the  United  States.  By  the 
"last,  foreign  goods,  as  they  are  enumerated,  are 
"  made  dutiable ;  they  are  not  so  because  they  are 
"  brought  into  a  collection  district,  but  because  they 
"■are  imported  into  the  United  States.  The  Tariff 
"Act  of  1846  prescribes  what  that  duty  shall  be. 
"  Can  any  reason  be  given  for  the  exemption  of  for- 
"  eign  goods  from  duty  because  they  have  not  been 
"  entered  and  collected  at  a  port  of  delivery  ?  .  .  . 
"The  right  claimed  to  land  foreign  goods  within  the 
"  United  States  at  any  place  out  of  a  collection 
"district,  if  allowed,  would  be  a  violation  of  the 
"provision  in  the  Constitution  which  enjoins  that  all 
"  duties,  imposts,  and  excises  shall  be  uniform 
"throughout  the  United  States.  Indeed,  it  must  be 
"very  clear  that  no  such  right  exists,  and  that  there 
"was  nothing  in  the  condition  of  California  to  ex- 
"empt  importers  of  foreign  goods  into  it  from  the 
"payment  of  the  same  duties  which  were  chargeable 
"in  the  other  ports  of  the  United  States."^  The  gist 
of  this  paragraph  is  that  a  tariff  act  is  so  far  effec- 
tive in  territory  annexed  after  its  passage  that  the 
President,  in  possession,  is  expected  to  collect  the 
duties  ;  but  the  Court  did  not  appear  to  be  thor- 
oughly satisfied  with  this  position,  for  at  the  close  of 
the  opinion  we  read:  "We  do  not  hesitate  to  say,  if 
"the  reasons  eiven  for  our  conclusions  in  this  case 
"were  not  sound,   that  other  considerations  would 

^  Cross  V.    Harrison,    16   Howard   164,   198.     (The  italics  are 
mine.) 


THE    GOVERNING    OF   THE  PHn.IPPIXES     113 

"bring  us  to  the  same  results  "  ;  and  the  last  of  these 
considerations,    which    are   generally  of  a   practical 
nature,    is  "that    the    Congress    has    by     two    acts 
'  adopted  and  ratified  all  the  acts  of  the  government 
'  established  in  California  upon  the  conquest  of  that 
'territory,  relative  to  the  collection  of  imposts  and 
'tonnaoe  from  the  commencement  of  the  late  war 
'with    Mexico    to    the    12th    November,    1849,    ^^- 
'  pressly  including  in  such  adoption  the  moneys  raised 
'  and  expended  during  that  period  for  the  support  of 
'  the  actual  government  of  California  after  the  ratifi- 
'  cation  of  the  treaty  of  peace  with  Mexico.     This 
'adoption    sanctions    what    the    defendant    did.      It 
'  does  more  —  it  affirms  that  he  had  legal  authority 
'  for  his  acts."     From  the  opinion  in  Cross  v.  Harri- 
son we  gain  the  impression  that  these  acts  of  the 
President  in  California  were  made  good  by  Congress, 
rather  than  warranted  by  his  own  powers. 

In  applying  the  rule  that  the  President  is  without 
legislative  power  in  United  States  territory  to  the 
present  case,  I  do  not  suggest  an  invariable  test  by 
which  administrative  decrees  issued  from  Washington 
directly,  or  through  the  military  government  in  the 
islands,  are  to  be  approved  as  executive  regulations 
or  condemned  as  acts  of  lecfislation.  It  is  sufficient 
to  know  that  decrees  plainly  of  the  forbidden  sort 
are  promulgated  in  the  Philippines. 

The  remarkable  instance  is  the  legislative  activity 
of  the  Commission  now  installed  in  the  Philippines. 
The  First  Philippine  Commission  was  appointed 
before  the  ratifications  of  the  Treaty  of  Paris  had 
formally  completed  our  legal  title  to  the  islands.  It 
8 


114         LAW  AND  POLICY  OF  ANNEXATION 

was  instructed  to  investigate,  to  conciliate,  to  report 
recommendations,  but  not  to  govern.-^  The  very- 
different  office  of  the  present  Commission  is  indicated 
by  the  following  passage  from  the  President's  in- 
structions of  April  7,  1900:  "Beginning  with  the 
"first  day  of  September,  1900,  the  authority  to 
"  exercise,  subject  to  my  approval,  through  the  Sec- 
"  retary  of  War,  that  part  of  the  power  of  govern- 
"ment  in  the  Philippine  Islands  which  is  of  a 
"legislative  nature  is  to  be  transferred  from  the 
"  Military  Governor  of  the  islands  to  this  Com- 
"  mission,  to  be  thereafter  exercised  by  them  in  the 
"place  and  stead  of  the  Military  Governor,  under 
"  such  rules  and  regulations  as  you  shall  prescribe, 
"  until  the  establishment  of  the  civil  central  govern- 
"  ment  for  the  islands  contemplated  in  the  last  fore- 
"  going  paragraph,  or  until  Congress  shall  otherwise 
"provide.  Exercise  of  this  legislative  authority  will 
"  include  the  making  of  rules  and  orders,  having  the 
"  effect  of  law,  for  the  raising  of  revenue  by  taxes, 
"  customs  duties,  and  imposts ;  the  appropriation  and 
"expenditure  of  public  funds  of  the  islands;  the 
"  establishment  of  an  educational  system  throughout 
"the  islands;  the  establishment  of  a  system  to  se- 
"cure  an  efficient  civil  service;  the  organization  and 
"  establishment  of  courts ;  the  organization  and  es- 
"tablishment  of  municipal  and  departmental  gov- 
"  ernments ;  and  all  other  matters  of  a  civil  nature 
"for  which  the  Military  Governor  is  now  competent 
"to  provide  by  rules  or  orders  of  a  legislative 
"  character."  '^ 

'  See  Report  of  the  Philippine  Commission,  I,  185. 
'^  President's  message  of  December  3,  1900. 


THE    GOVERNING    OF  THE  PHILIPPINES     115 

Here  is  a  positive  assertion  of  an  executive  power 
to  govern  the  Philippines  without  the  interposition 
of  Congress.  Considering  that  the  power  claimed 
includes  the  supreme  right  to  levy  taxes  in  United 
States  territory,  it  is  not  perceived  why,  were  the 
claim  a  lawful  one,  the  President  could  not  ascertain 
and  dispose  of  all  the  public  lands  in  the  islands, 
intrust  the  material  development  of  the  country 
largely  to  private  monopolies,  and  then  turn  over  to 
Congress  the  vast  estate  committed  to  his  steward- 
ship with  the  best  part  of  its  assets  gone,  and  some 
of  its  greatest  potentialities  mortgaged.  The  Ad- 
ministration, indeed,  disclaims  the  right  to  do  such 
improvident  things,^  but  while  this  disclaimer  is  evi- 
dence of  a  just  policy,  it  is  inconsistent,  theoretically, 
with  the  great  powers  claimed. 

Research  may  disclose  some  instances  of  executive 
usurpation  of  the  powers  of  Congress,  but  I  think 
the  present  Administration  is  the  first  that  has  ever 
made  new  laws  for  United  States  territory  under  claim 
of  right ;  certainly  it  is  the  first  to  defend  its  course 
before  the  courts. 

As  the  Administration  declares  that  its  g-overn- 
ment  of  the  islands  "is  maintained  by  the  law  of  bel- 
"ligerent  right,"  it  may  imagine  that  it  enjoys  the 
arbitrary  powers  of  a  conqueror.  Or,  as  it  seems  to  be 
committed  to  the  doctrine  that  the  Constitution  is  in- 
operative in  the  ceded  territory,  it  may  assume  all 
governmental  powers  upon  the  theory  that  the  con- 
stitutional separation  of  powers  does  not  affect  the 
President  as  the  custodian  of  the  Philippines.  Neither 
of  these  positions  is  tenable,  as  I  have  shown. 

^  See  Opinions  of  the  Attorney-General,  vol.  xxii,  544,  546,  551. 


ii6         LAW  AND  POLICY  OF  ANNEXATION 

Arbitrary  executive  acts  are  not,  indeed,  always  in- 
excusable or  irreparable.  "  I  am  quite  aware,"  says  an 
eminent  jurist,  "that  in  times  of  great  public  danger 
"  unexpected  perils,  which  the  legislative  power 
"  have  failed  to  provide  against,  may  imperatively 
"  demand  instant  and  vigorous  executive  action,  pass- 
"  ing  beyond  the  limits  of  the  laws ;  and  that  when 
"  the  Executive  has  assumed  the  high  responsibility 
"of  such  a  necessary  exercise  of  mere  power,  he 
"  may  justly  look  for  indemnity  to  that  department 
"  of  the  government  which  alone  has  the  rightful 
"authority  to  grant  it  —  an  indemnity  which  should 
"be  always  sought  and  accorded  7ipon  the  clearest 
''admission  of  legal  wrong  finding  its  excuse  in  the 
"exceptional  case  which  made  that  wrong  absolutely 
"  necessary  for  the  public  safety."^ 

The  redeemable  legislative  acts  of  a  President  are 
those  which  Congress  could  have  passed,  and  can 
ratify.  President  Taylor  sought  and  gained  legisla- 
tive approval  for  some  acts  of  the  military  government 
of  California,^  and,  already,  Congress  seems  to  have 
adopted,  as  far  as  possible,  the  legislation  of  the 
military  government  of  Porto  Rico.^ 

Legislatures  have  also  passed  acts  of  indemnity, 
protecting  from  suit  persons  concerned  in  the  execu- 
tion of  illeoral  executive  decrees.*  Thus  Parliament 
acted  in  the  case  of  "the  forty  days'  tyranny"  in 
1766,    during   which    the    British    Government  sus- 

1  Executive  Power,  by  Benjamin  R.  Curtis ;  reprinted  in  G. 
T.  Curtis's  Constitutional  History  of  the  U.  S.,  II,  673. 

2  See  Messages  of  the  Presidents,  V,  19 ;  and  supra,  p.  1 13. 
•^  See  Porto  Rico  Government  Act,  §  7. 

4  See  Phillips  v.  Eyre,  L.  R.  4  Q.  B.  225 ;   L.  R.  6  Q.  B.  i. 


THE   GOVERNING   OF  THE   PHILIPPINES     117 

pended  the  laws  permitting  the  export  of  corn. 
Thus  Congress  acted  for  the  protection  of  ah  per- 
sons who  executed  the  orders  of  the  mihtary 
authorities  engaged  in  conducting  the  Civil  War.^ 

Whenever  the  Administration  has  legislated  for 
Porto  Rico  and  the  Philippines  since  their  annex- 
ation it  has  invaded  the  province  of  Congress,  and 
all  arguments  of  extenuation  must  come  at  last  to  the 
plea  of  necessity. 

In  considering  this  plea  we  must  dismiss  at  the 
outset  the  notion  that  the  assembling  of  Congress  in 
stated  session  worked  a  change  in  the  President's 
powers  as  administrator  of  the  annexed  territory  by 
depriving  him  of  legislative  functions  enjoyed  of  ne- 
cessity during  the  recess.  These  powers  are  the  same 
in  recess  as  in  session,  since,  in  theory  of  law,  the 
President  never  lacks  the  cooperation  of  the  legislature, 
except,  perhaps,  during  the  brief  time  needed  to  con- 
vene it  in  special  session.  If,  then,  the  President  pos- 
sessed legislative  powers  of  necessity  when  he  might 
have  called  Congress  but  did  not,  his  right  must  be 
based  upon  the  mere  inaction  of  Congress,  and  not 
upon  the  physical  impossibility  of  its  acting,  for  this 
was  due  to  his  failure  to  convene  it ;  and  on  this 
theory  he  would  possess  legislative  power  while  Con- 
gress sits  but  does  not  act.  And  this  appears  to  be 
the  opinion  of  the  Administration,  for  during  the  last 
session  of  Congress  the  Secretary  of  War  issued  a  de- 
cree forbidding  the  foreclosure  of  mortgages  in  Porto 
Rico  for  six  months,  unless  Congress  should  other- 
wise provide.  But  it  is  impossible  that  legislative 
powers  should  accrue  to  the  President  because  of  the 

1  See  Beard  v.  Burts,  95  U.S.  434,  438. 


ii8         LAW  AND  POLICY  OF  ANNEXATION 

inaction  of  Congress.  If,  in  his  judgment,  legislation 
for  annexed  territory  is  necessary,  he  may  commend  it 
to  Congress  in  regular  or  special  session  ;  and  if  Con- 
gress shall  not  legislate  on  his  motion  or  on  its  own, 
it  is  presumed  to  be  satisfied  with  the  existing  body 
of  law  comprising  the  Constitution,  the  old  law  of  the 
territory,  and  such  United  States  statutes  as  may 
extend  of  their  own  force. 

Whatever  moral  weight  a  plea  of  necessity  may 
have  when,  in  a  recess  of  Congress  instant  action  is 
required  to  avert  a  threatened  peril,  it  has  none  in 
this  case.  The  ofoverninQf  of  the  islands  is  not  an 
emergency  in  any  extenuating  sense.  Congress  had 
provided  for  their  acquisition  before  it  adjourned  in 
March,  1899,  and  must  be  presumed  to  have  expected 
that  the  President  would  be  called  upon  to  take  charge 
of  them  during  the  usual  recess.  If,  before  the 
next  reofular  session,  there  had  arisen  a  need  for 
legislation,  the  President  should  have  convened  Con- 
gress. He  cannot  plead  the  emergency  of  a  condition 
caused  by  his  failure  to  call  the  legislature. 

Then  in  December,  1899,  Congress  assembled  in 
stated  session,  during  which  it  neglected  the  Philip- 
pines. Another  recess  followed,  and,  during  this 
session  and  recess,  the  President  persisted  in  legis- 
lating, no  longer  encouraged  by  even  the  pretense 
of  emergency.  The  fact  is  that  the  President  and 
Congress  have  combined  to  exalt  the  one  and  de- 
grade the  other  by  approving  the  theory  that  the 
President  is  a  better  legislature  for  the  islands  than 
Congress.  As  a  matter  of  mere  policy  this  theory  is 
not  commended  by  assuming  that  the  alternative  to 
executive  legislation  by  the  President's  agents  acting 


THE   GOVERNING   OF  THE   rUILIPPINES     119 

on  the  spot,  with  some  knowledge  of  local  conditions, 
was  the  direct  regulation  of  insular  affairs  by  Con- 
gress sitting  thousands  of  miles  away  in  absolute 
ignorance  of  these  conditions.  The  practicable  alter- 
native was  the  establishment  by  Congress  of  a 
provisional  government  competent  to  exercise  its 
delegated  authority.  In  point  of  constitutional  law 
the  theory  is  not  even  open  to  discussion. 

When  the  people  commenced  the  Constitution 
with  the  law,  "All  legislative  powers  herein  granted 
"shall  be  vested  in  a  Congress  of  the  United 
"States,"  they  laid  a  prohibition  upon  all  Presidents 
at  all  times  —  upon  Washington,  prefigured  as  our 
first  chief  magistrate,  as  upon  his  unknown  suc- 
cessors. 

The  incapacity  of  the  executive  department  to  ^ 
♦  legislate  for  unorganized  territory  was  recognized  by 
President  Jefferson  in  the  case  of  Louisiana^  and  by 
President  Polk  in  the  case  of  California ;  ^  and  the 
wretched  plight  of  Alaska,  a  Territory  neglected  by 
Congress  for  more  than  thirty  years,  and  accorded  a 
proper  government  only  a  few  months  ago,  has  been 
laid  before  Congress  by  successive  Presidents,  none  of 
whom  supposed  that  the  inactivity  of  the  legislature 
gave  him  the  right  to  act  in  its  stead.  Yet,  while 
President  McKinley  said  in  his  annual  message 
of  1899,^  "  There  is  practically  no  organized  form 
"of  government  in  the  Territory  [Alaska]  ;  there  is 
"  no  authority  except  in  Congress  to  pass  any  law, 

1  Messages  of  the  Presidents,  I,  363. 

2  Messages  of  the  Presidents,  IV,  589,  638. 

3  Page  48. 


I20         LAW  AND  FOLIC Y  OF  ANNEXATION 

"  no  matter  how  local  or  trivial,  ..."  he  does  1 
not  hesitate  to  legislate  freely  for  the  unorganized 
Philippine  territory,  and  that  this  legislative  power  is 
not  really  assumed  upon  the  plausible,  though  mis- 
taken, ground  of  the  existence  of  insurrection-^  is  shown 
by  the  fact  that  it  was  exercised  in  the  peaceful 
territory  of  Porto  Rico  during  the  military  regime. 

The  legislative  decrees  in  the  Philippines  are  not 
justified  by  any  intrinsic  merit,  though  decrees  pos- 
sessing this  quality  may  be  ratified  by  Congress  in 
the  public  interest.  Nor  are  they  excused  by  reason 
of  necessity,  for  Congress  could  have  authorized  the 
enactment  of  laws  of  like  tenor  through  unimpeach- 
able agencies.  Indeed  the  worst  feature  of  the  case 
is  that  we  are  not  asked  to  be  g^enerous  toward  an 
Administration  that  pleads  even  plausible  necessity 
as  an  excuse  for  overstepping  the  law :  We  are  ex- 
pected to  applaud  an  Administration  that,  like  the 
British  Crown,  asserts  a  right  to  make  laws  for  new 
territory  until  the  legislature  shall  see  fit  to  inter- 
pose. Here  is  an  assumption  of  power  which  merits 
the  denunciation  that  Judge  Curtis,  at  one  time  a 
member  of  the  Supreme  Court,  and  always  a  loyal 
citizen,  launched  against  the  Administration  during 
the  Civil  War: 

"  It  has  been  attempted  by  some  partisan  journals 
"  to  raise  the  cry  of  'disloyalty  '  against  any  one  who 
"  should  question  these  executive  acts. 

"  But  the  people  of  the  United  States  know  that 

1  The  executive  duty  of  suppressing  insurrection  in  United 
States  territory,  whether  in  the  PhiHppines  or  in  New  Mexico,  does 
not  carry  an  executive  prerogative  of  making  laws  for  the  dis- 
turbed district. 


THE   GOVERNING   OF  THE  PHILIPPINES    121 

"  loyalty  is  not  subserviency  to  a  man  or  to  a  party 
**  or  to  the  opinions  of  newspapers,  but  that  it  is  an 
"honest  and  wise  devotion  to  the  safety  and  welfare 
"of  our  country,  and  to  the  great  principles  which 
"our  constitution  of  government  embodies,  by  which 
"alone  that  safety  and  welfare  can  be  secured.  And 
"  when  those  principles  are  put  in  jeopardy,  every 
"truly  loyal  man  must  interpose,  according  to  his 
"ability,  or  be  an  unfaithful  citizen. 

"This  is  not  a  government  of  men.  It  is  a  gov- 
"  ernment  of  laws.  And  the  laws  are  required  by 
"the  people  to  be  in  conformity  with  their  will  de- 
"clared  by  the  Constitution.  Our  loyalty  is  due  to 
"that  will.  Our  obedience  is  due  to  those  laws;  and 
"he  who  would  induce  submission  to  other  laws, 
"springing  from  sources  of  power  not  originating  in 
"the  people,  but  in  casual  events,  and  in  the  mere 
"will  of  the  occupants  of  places  of  power,  does  not 
"exhort    us    to    loyalty,   but    to  a  desertion  of  our 


1 1 


trust 


"  1 


THE    POWERS    OF    CONGRESS 

Congress  is  supreme  in  the  Philippines.  It  ac- 
quired jurisdiction  the  moment  the  islands  became 
United  States  territory.  There  is  no  room  for  the 
notion  that  jurisdiction  does  not  attach  until  Congress 
actually  legislates.  Congress  is  supreme  throughout 
the  United  States ;  it  may  legislate  deliberately, 
reluctantly ;    it   may    shirk    its   duty ;  but    it  cannot 

1  Executive  Power;  reprinted  in  G.  T.  Curtis's  Constitutional 
History  of  the  United  States,  II,  671. 


122         LAW  AND  POLICY  OF  ANNEXATION 

escape  the  responsibility  that  goes  with  jurisdiction. 
In  legislating  for  the  Philippines,  Congress  will 
merely  exercise  jurisdictional  rights  already  vested 
in  it  —  vested  by  the  ratification  of  the  Treaty  of 
Paris,  in  my  opinion,  but,  at  any  rate,  by  the  appro- 
priation of  the  $20,000,000  called  for  by  the  Treaty.^ 


Source  and  Extent  of  Congressional  Powers 

There  is  some  difference  of  opinion  as  to  the  pre- 
cise source  of  the  power  of  Congress  to  govern 
the  territory  lying  beyond  the  States.  "  The  power 
"of  governing  and  legislating  for  territory,"  says 
Chief  Justice  Marshall,  "is  the  inevitable  conse- 
"quence  of  the  right  to  hold  territory.  Could  this 
"proposition  be  contested,  the  Constitution  of  the 
"United  States  declares  that  'Congress  shall  have 
"  '  power  to  dispose  of  and  make  all  needful  rules 
"  '  and  regulations  respecting  the  territory  or  other 
"  '  property  belonging  to  the  United  States.'  "■^  And 
he  said  in  a  later  opinion:  "In  the  meantime 
"Florida  continues  to  be  a  Territory  of  the  United 
"  States,  governed  by  virtue  of  that  clause  in  the 
"Constitution  which  empowers  Congress  'to  make 
"'all  needful  rules  and  regulations  respecting  the 
" '  territory  or  other  property  belonging  to  the 
"'United  States.'" 

"  Perhaps  the  power  of  governing  a  Territory 
"  belonging  to  the  United  States  which  has  not,  by 
"becoming    a    State,    acquired    the    means    of  self- 

1  See  supra,  p.  22. 

'-iSere  v.  Pitot,  6  Cranch  332,  336. 


THE   GOVERNING   OE  THE  PHILIPPINES     123 

"  government,  may  result  necessarily  from  the  fact 
"that  it  is  not  within  the  jurisdiction  of  any  particu- 
"  lar  State,  and  is  within  the  power  and  jurisdiction 
'*  of  the  United  States.  The  right  to  govern  may  be 
"  the  inevitable  consequence  of  the  right  to  acquire 
"territory."^  In  Chief  Justice  Taney's  opinion,  the 
power  to  "make  all  needful  rules,"  etc.,  refers  solely 
to  land  ceded  by  the  States,  and  the  general  power 
to  govern  territory  "  stands  firmly  "  on  the  right  to 
acquire  it.'^  This  opinion  has  the  better  reason  :  It  is 
self-justifying;  and  its  adoption  leaves  the  constitu- 
tional clause  relating  to  territory  to  express  simply  the 
power  to  manage  property,  especially  to  sell  the 
public  lands,  which,  when  the  whole  clause  is  read,  is 
perceived  to  be  its  main  purpose:  "The  Congress  shall 
"  have  power  to  dispose  of  and  make  all  needful  rules 
"and  regulations  respecting  the  territory  or  otlier 
"property  belonging  to  the  United  States;  and 
"nothinsf  in  this  Constitution  shall  be  so  construed 
"  as  to  prejudice  any  claims  of  the  United  States,  or 
"of  any  particular  State." ^  But,  to  quote  Chief 
Justice  Marshall  again:  "Whatever  may  be  the 
"source  from  which  the  power  is  derived,  the  pos- 
"  session  of  it  is  unquestioned."* 

Whatever  its  source,  the  power  of  Congress  over 
territory  beyond  the  States  is  exclusive  and  com- 
plete.    The  Supreme  Court  says :  "  By  the  Constitu- 

1  American  Ins.  Co.  v.  Canter,  i  Peters  511,  542. 

2  Scott  V.  Sandford,  19  Howard  393,  432-444.  See  also  U.  S. 
V.  Kagama,  118  U.  S.  375,  380. 

3  Art.  IV,  Sec.  3,  §  2. 

"1  American  Ins.  Co.  v.  Canter,  i  Peters  511,  544. 


124         LAW  AND  POLICY  OF  ANNEXATION 

"tion,  as  is  now  well  settled,  the  United  States, 
"  having  rightfully  acquired  the  Territories,  and 
"being  the  only  government  which  can  impose  laws 
"upon  them,  have  the  entire  dominion  and  sov- 
"  ereignty,  national  and  municipal,  federal  and  State, 
"  over  all  the  Territories,  so  long  as  they  remain  in 
"a  territorial  condition."^  "  Congress  may  not  only 
"abrogate  laws  of  the  territorial  legislatures,  but  it 
"may  itself  legislate  directly  for  the  local  govern- 
"ment.  It  may  make  a  void  act  of  the  territorial 
"legislature  valid,  and  a  valid  act  void.  In  other 
"  words,  it  has  full  and  complete  legislative  authority 
"over  the  people  of  the  Territories  and  all  the 
"  departments  of  the  territorial  governments.  It 
"  may  do  for  the  Territories  what  the  people,  under 
"  the  Constitution  of  the  United  States,  may  do  for 
"the  States."^  Although  the  difference  between 
federal  and  local  affairs  is  not  marked  in  the  Terri- 
tories by  governments  organically  distinct,  as  in  the 
States,  it  exists  nevertheless,  for  Congress  stands 
in  a  double  relation  to  each  Territory,  treating  it  as 
a  part  of  the  republic  in  matters  of  federal  concern, 
and  caring  for  its  local  interests  as  a  State  govern- 
ment might. 

The  local  affairs  of  the  Philippines  may  be  admin- 
istered with  as  single  a  regard  to  their  peculiar 
interests  as  are  the  affairs  of  a  State,  for  the  Con- 
stitution does  not  prescribe  that  all  Territories  shall 
be  administered  from  a  common  standpoint,  but  per- 
mits the  peculiar  needs  of  each  to  be  considered.^ 

^Shively  v.  Bowlby,  152  U.  S.  1,48. 

2  National  Bank  v.  County  of  Yankton,  loi  U.  S.  129,  133. 

^  See  France  v.  Connor,  161  U.  S.  65. 


THE   GOVERNING    OF  THE  PHILIPPINES     125 

In  virtue  of  its  powers  Congress  enjoys  a  broad 
discretion  in  instituting  a  government  for  the  Philip- 
pines. Any  form  is  permissible,  from  an  organiza- 
tion chosen  by  the  islanders  to  a  governor  or  com- 
mission appointed  by  the  President.  But  a  territorial 
government  is  essentially  subordinate  and  precarious. 
Congress  remains  the  sovereign  body,  and  may  alter 
or  abolish  it  at  will,  and  exert  superior  legisla- 
tive powers  during  the  term  of  its  existence.  The 
legal  right  of  Congress  to  establish  a  territorial  gov- 
ernment without  the  cooperation,  or  even  the  consent 
of  the  people  results  from  the  necessary  denial  of 
popular  sovereignty  in  the  Territories ;  but  this  gov- 
ernment, however  it  may  be  imposed,  must  rule 
in  conformity  to  the  Constitution. 


The  Exercise  of  Congressional  Powei's 

The  current  session  affords  Congress  a  second  op- 
portunity to  exert  its  constitutional  powers  in  the 
Philippines.  These  powers  should  now,  and  here- 
after, be  employed  sparingly  in  the  direct  regulation 
of  local  as  distinguished  from  federal  affairs,  because 
Congress  lacks  the  knowledge  and  sympathy  essen- 
tial to  the  framing  of  suitable  laws  for  this  strange 
and  distant  people.  The  abstention  of  a  national 
legislature  from  frequent  intervention  in  the  affairs 
of  remote  dominions  unrepresented  in  its  councils  is 
a  notable  feature  of  British  policy.  "  In  practice," 
says  Mr.  C.  F.  Lucas,  "this  paramount  power 
"of  legislation  by  the  Imperial  Parliament  is  only 
"  exercised  by  acts  conferring  constitutional  powers, 


126         LAW  AND  POLICY  OF  ANNEXATION 

"or  dealing  with  a  limited  class  of  subjects  of  special 
"imperial  or  international  concern,  such  as  merchant 
"shipping  and  copyright.  It  is  therefore,  generally 
"  speaking,  left  to  the  Crown  or  to  the  local  legisla- 
"tures  to  make  laws,  as  Parliament  can,  when  it 
"thinks  fit,  make  its  views  on  any  colonial  question 
"known  to  the  Crown  by  resolution."^  Excepting 
its  recognition  of  executive  legislation,  the  British 
policy  commends  itself  to  us.  While  all  lawful  legis- 
lation for  the  Philippines  must  be  congressional,  in 
the  sense  of  being  enacted  by  the  agents  of  Congress 
and  subject  to  its  inherent  right  of  veto,  mainly  it 
should  be  framed  by  a  body  in  touch  with  the  islands. 

A  bill  carried  over  from  the  last  session  provides 
"  that  when  all  insurrection  against  the  sovereignty 
"and  authority  of  the  United  States  in  the  Philippine 
"  Islands,  acquired  from  Spain  by  the  treaty  concluded 
"at  Paris  on  the  tenth  day  of  December,  1898,  shall 
"  have  been  completely  suppressed  by  the  military  and 
"naval  forces  of  the  United  States,  all  military,  civil, 
"and  judicial  powers  necessary  to  govern  the  said 
"  islands  shall,  until  otherwise  provided  by  Congress, 
"be  vested  in  such  person  and  persons,  and  shall  be 
"exercised  in  such  manner,  as  the  President  of  the 
"  United  States  shall  direct  for  maintaining  and  pro- 
"tecting  the  inhabitants  of  said  islands  in  the  free  en- 
"joyment  of  their  liberty,  property,  and  religion." 

A  precedent  for  this  bill  is  said  to  be  found  in  the 
action  of  Congress  after  the  annexation  of  Louisi- 
ana. On  October  31,  1803,  ten  days  after  the  ex- 
change of  the  ratifications  of  the  treaty  of  cession, 

^  Lucas's  Edition  of  Lewis's  Government  of  Dependencies,  p.  331. 


THE   GOVERNING   OF  THE  PHILIPPINES    127 

Congress  passed  an  act  authorizing  the  President  to 
take   possession   of  Louisiana,  and  providing  "that 
'until  the  expiration  of  the  present  session  of  Con- 
'  gress,  unless  provision  for  the  temporary  govern- 
'  ment  of  the   said  Territories   be   sooner  made  by 
'  Congress,  all  the  military,  civil,  and  judicial  powers 
'  exercised  by  the  officers  of  the  existing  government 
'  of  the  same  shall  be   vested  in   such   person  and 
*  persons,  and  shall  be  exercised  in  such  manner,  as 
'the  President  of  the  United  States  shall  direct  for 
'  maintaining    and    protecting    the    inhabitants    of 
'  Louisiana   in   the  free  enjoyment  of  their  liberty, 
'  property,  and  religion."^     The  Louisiana  Act  was 
followed  substantially  in   the   case   of  Florida^  and 
may    have    inspired    a    part    of    the    act    annexing 
Hawaii,^  but  it  is  not  a  precedent  for  the  Philippine 
bill.      The  government  of  Louisiana,  such  as  it  was, 
was  established  definitely.     The  Philippine  govern- 
ment is  to  be  called  into  being  by  the  President  upon 
the  happening  of  an  event  of  which  he  is  to  be  the 
sole  judge  —  the  suppression  of  insurrection.     And, 
in  this  relation,  the  bill  is  open  to  the  serious  objec- 
tion that  it  recognizes,  tacitly,  the  mere  will  of  the 
executive  as  being  the  foundation  of  all  governmental 
powers    in    the   islands.      The    Louisiana    Act    con- 
tinued the  old  government  of  Louisiana  and  merely 
authorized    the     President    to    fill    its    offices.      The 
Philippine  bill  enables  the  President  to  erect  a  gov- 
ernment at  will,  manned  by  "  such  person  and  per- 

^  2  Statutes  at  Large  246. 

-3  Statutes  at  Large  523.     See  also  Mitchel  v.  U.  S.,  9  Peters 

711,  736. 

•'  30  Statutes  at  Large  750. 


128         LAW  AND  POLICY  OF  ANNEXATION 

"sons  .  .  .  as  he  may  direct."  The  Louisiana  Act 
did  not  purport  to  confer  legislative  powers  upon 
the  President,  and  Governor  Claiborne's  first  procla- 
mation expressly  recognized  the  obligation  of  the 
old  laws  and  municipal  regulations.  The  Philippine 
bill  seems  to  concede  to  the  President  full  legislative 
powers.  The  Louisiana  government  was  to  last  no 
longer  than  the  then  session  of  Congress,  though 
the  new  government  ordained  by  Congress  on  March 
24,  1804,  was  not  actually  installed  until  October  i, 
1804.     The  Philippine  government  is  without  term. 

Viewing  the  bill  as  an  Administration  measure,  and 
recalling  the  opinion  of  the  Administration  that  the 
Constitution  is  not  law  in  the  Philippines,  it  seems 
that  it  purposes  to  invest  the  President  with  the  right, 
or  perhaps  I  should  say  to  recognize  that  he  has  the 
right,  to  hold  all  legislative  powers  in  the  islands  and 
exercise  them  at  his  pleasure.  If  this  be  the  purpose 
of  the  bill  it  approves  the  powers  of  the  British  Crown 
over  dependencies  not  regulated  by  Parliament,  with- 
out imposing  the  checks  upon  their  abuse  which  ob- 
tain in  the  British  system,  where  the  Crown  is  forbid- 
den to  act  "contrary  to  the  fundamental  law,"^  and 
where  relief  from  injustice  may  be  had  through  an 
appeal  to  the  Judicial  Committee  of  the  Privy 
Council.^ 

The  Philippine  bill  is  a  halting  measure  of  doubt- 
ful legality.  It  merely  conveys  an  impression  that 
some  day,  in  some  way,  something  ought  to  be 
done  for  the  Philippines,  whereas  it  is  the  duty  of 
Congress  and  well  within  its  power  to  act  at  once. 

'  See  supra,  \).  31. 
2  See  supra,  p.  99. 


THE    GOVERNING    OE   THE  PHrLFPriNES     129 

Each  day  of  unrest  in  the  Philippines  makes  our 
presence  more  hateful  and  postpones  our  opportunity 
for  helpfulness ;  indeed,  if  resistance  be  greatly  pro- 
longed we  may  learn  one  day  that  we  have  demoral- 
ized a  people  we  promised  to  benefit.  The  republic 
itself  may  be  menaced  by  persistent  disaffection,  for 
if  it  shall  be  involved  presently  in  a  new  and  greater 
war  the  enemy  will  find  allies  in  the  Philippine  terri- 
tory. The  Administration  is  blameworthy  for  hav- 
ing belittled  the  extent  of  the  disaffection.  If  the 
President  shall  now  call  for  troops  to  garrison  the 
islands  thoroughly  he  will  not  be  blamed  for  exag- 
gerating it.  But  whatever  may  be  the  state  of  the 
insurrection,  the  peace  we  want  is  contentment  —  not 
merely  the  end  of  strife ;  and  we  cannot  hope  that 
one  will  follow  the  other  whilst  we  treat  disaffection 
as  wanton  opposition  to  a  benign  sovereign,  and 
armed  resistance  to  our  authority  as  unnatural 
rebellion. 

The  attitude  of  regretful  surprise  that  Filipinos 
should  resist  our  benevolence  is  a  disingenuous  pose. 
When  we  recall  that  a  few  months  ago  we  knew 
nothing  of  the  Philippines  (know  little  now  in  fact), 
we  may  comprehend  how  ignorant  must  be  the 
islanders  of  the  institutions  and  spirit  of  our  republic. 
In  these  circumstances  conciliation  is  not  an  improper 
overture  to  rebels.  It  is  a  generous  effort  to  allay 
the  mistrust  of  a  strange  people,  and  to  assure  mutual 
comprehension  between  parties  brought  unexpect- 
edly into  a  difficult  relation.  In  pursuance  of  these 
ends  let  Congress  cause  proclamation  to  be  made 
that  the  Philippines  are  not  a  dependency,  but  are 
part  of  the  republic  and  within  the  protection  of  the 
9 


I30         LAW  AND  POLICY  OF  ANNEXATION 

Constitution  ;  and  especially  that  citizenship  and  civil 
rights  are  bestowed  in  the  Philippines  as  in  all  other 
United  States  territory,  and  that  trade  between  all 
parts  of  the  republic  is  free.  This  proclamation 
should  not  be  withheld  because  proclamations  of  the 
President  and  his  agents  have  proved  futile,  for,  as  a 
messaofe  from  Congfress  declarinsT  the  law  of  the  Con- 
stitution,  it  will  be  of  higher  dignity  and  promise. 
Nor  should  it  be  issued  with  an  exaggerated  hope  of 
its  influence,  since  the  sending  of  a  message  is,  after 
all,  but  a  one-sided  dealing  at  arm's  length  with  a 
situation  that  requires  intimate  discussion.  Repre- 
sentative Filipinos  should  be  invited  to  attend  a  con- 
ference to  be  held  at  Washington,  and  they  should  be 
received  neither  as  traitors  nor  as  heroes,  but  as 
people  of  new  territory  come  to  discuss  the  vital 
question  of  its  government.  If  it  be  objected  that 
any  intercourse  with  insurgents  is  beneath  our  dig- 
nity, let  us  remember  that  President  Lincoln  left  his 
capital  to  talk  with  Confederate  leaders  at  Hampton 
Roads,  set  in  his  own  opinions,  with  no  expectation  of 
changing  theirs,  but  determined  that  no  chance  for 
peace  should  be  lost  through  lack  of  consideration  on 
his  part. 

OUR  RELATION  TO  THE  OLD  ORDER 

The  Old  Laws 

One  of  the  first  questions  suggested  by  the  coming 
of  a  new  sovereign  to  a  country  has  regard  to  the 
fate  of  that  old  order  which  is  evidenced  by  the  local 
law.      In   this  event,    "the   law   which   may   be   de- 


THE    GOVERNING    OF  THE  PHILIPPINES     131 

"nominated  political,"  says  Chief  Justice  Marshall, 
"is  necessarily  changed."^  This  is  true  in  the  broad 
sense  that  the  peculiar  attributes  and  powers  of  the 
old  sovereign  are  not  transmitted  to  the  new  one ; 
nor  do  the  laws  through  which  such  powers  have 
been  exercised  become  its  laws.  "  It  cannot  be  ad- 
"  mitted,"  said  the  Supreme  Court,  "that  the  King 
"  of  Spain  could,  by  treaty  or  otherwise,  impart  to 
"the  United  States  any  of  his  royal  prerogatives; 
"  and  much  less  can  it  be  admitted  that  they  have 
"  capacity  to  receive  or  power  to  exercise  them. 
"  Every  nation  acquiring  territory,  by  treaty  or  other- 
"  wise,  must  hold  it  subject  to  the  Constitution  and 
"laws  of  its  own  government,  and  not  according 
"  to  those  of  the  government  ceding  it."-  By  the 
light  of  this  decision  we  perceive  that  when  President 
Jefferson  commissioned  a  governor  of  Louisiana  with 
the  powers  of  the  former  governor-general  and  the 
intendant  he  could  not  lawfully  invest  the  republican 
official  with  any  attributes  of  those  representatives 
of  royal  power  inconsistent  with  our  Constitution.^ 

While  the  new  sovereign  has  a  right  to  change  all 
the  political  institutions  of  the  annexed  district.  Chief 
Justice  Marshall  did  not  mean  that  the  act  of  annexa- 
tion necessarily  effects  this  sweeping  result ;  and  gov- 
ernmental agencies  consistent  with  the  new  order 
may  be  utilized  without  confirmatory  legislation. 
The  vitality  of  municipal  agencies,  for  example,  is 
illustrated  in  the  case  of  California,  where  the  State 

1  American  Ins.  Co.  v.  Canter,  i  Peters  511,  542. 
'•^  Pollard  V.  Hagan,  3  Howard  212,  225.    See  also  New  Orleans 
V.  U.  S.,  10  Peters  662,  736.    See  Picton's  Case,  30  State  Trials  225. 
3  See  supra,  p.  37. 


132         LAW  AND  POLICY  OF  ANNEXATION 

courts  have  even  sustained  grants  of  pueblo  (town) 
land  made  during  the  existence  of  the  military  gov- 
ernment by  ayuntamientos  acting  under  the  old 
Mexican  law.^  So  the  courts  of  a  country  are  not 
necessarily  closed  by  its  cession,'^  The  Treaty  of  \ 
Paris  recognizes  this  in  the  provision  that  civil  suits 
undetermined  at  the  time  of  the  exchange  of  ratifica-  1  \ 
tions  may  be  prosecuted  to  judgment  in  the  court  in 
which  they  are  pending,  or  in  such  court  as  may  be 
substituted  therefor.  And  the  courts  of  California 
have  affirmed  the  validity  of  proceedings  in  tri- 
bunals of  Mexican  origin  acting  under  the  military 
pfovernment.^ 

In  regard  to  civil,  as  distinguished  from  political 
law  it  is  well  settled  that  a  system  of  jurisprudence 
already  established  in  annexed  territory  is  not  sup- 
planted by  the  system  of  the  acquiring  state  by  the 
mere  act  of  transfer,  but  subsists  until  the  new 
sovereign  shall  see  fit  to  change  it :  ^  And  the  United 
States  observe  both  the  rule  of  public  law,  and  the 
obligations  of  the  Constitution  by  respecting  private 
property  and  rights  in  annexed  territory  which  have 
become  duly  vested  under  the  old  laws/  Note,  how- 
ever, that  the  United  States  are  not  burdened  with 
obligations  in  respect  of  private  claims  against  the 

'Hart  V.  Burnet,  15  California  530,  559.  See  also  Townsend 
V.  Greeley,  5  Wallace  326. 

2  See  Keene  v.  McDonough,  8  Peters  308. 

•' Mena  v.  Le  Roy,  i  California  216;  Ryder  v.  Cohn,  37 
California  69. 

•*  Campbell  v.  Hall,  Cowper  204 ;  U.  S.  v.  Percheman,  7  Peters 
51,  80;  Strother  v.  Lucas,  12  Peters  410,  436. 

•'' U.  S.  V.  Percheman,  7  Peters  51,  86;  U.  S.  v.  Moreno,  i 
Wallace  400. 


THE   GOVERNING    OF  THE  PHILIPPTNES     133 

former  government.  As  the  Supreme  Court  said  in 
regard  to  the  annexation  of  Mexican  territory,  the 
United  States  took  the  land,  "bound  to  respect  all 
"  rights  of  property  which  the  Mexican  Govern- 
"  ment  respected,  but  under  no  obligations  to  right 
"the  wrongs  which  that  government  had  theretofore 
"  committed."^ 

Except  as  they  are  the  foundation  of  private  rights 
already  vested,  and  compatible  with  the  Constitu- 
tion, the  laws  of  annexed  territory  impose  no  per- 
manent obligation  upon  the  United  States.  These 
laws  may  be  divided  roughly  into  three  classes. 

I.  Laws  conflicting  with  the  Constitution  are  null 
and  void.^  An  interesting  recognition  of  this  rule 
accompanied  the  transfer  of  Louisiana  to  the  United 
States.  On  November  30,  1803,  a  French  com- 
missioner took  momentary  possession  of  Louisiana 
under  the  Treaty  of  San  Ildefonso,  of  October  i, 
1800  (by  which  Spain  had  ceded  it  to  France),  only 
to  announce  its  cession  by  France  to  the  United 
States.  Pending  actual  occupation  by  the  United 
States  he  revived  by  proclamation  the  Black  Code 
ordained  by  Louis  XV  during  the  former  rule  of 
France,  excepting,  however,  the  provisions  inconsis- 
tent with  our  Constitution  and  laws ;  ^  and  referring 
to  this  Code*  we  find  sufficient  reason  for  the  excep- 
tion in  the  articles  requiring  the  expulsion  of  Jews, 
and  the  exclusive  recog^nition  of  the  Roman  Catholic 
religion. 

1  Cessna  v.  U.  S.,  169  U.  S.  165,  187. 

2  See  Chicago  &  Pacific  Ry.  Co.  v.  McGlinn,  1 14  U.  S.  542,  546. 
■'  Martin's  History  of  Louisiana,  II,  197. 

•t  French's  Historical  Collections  of  Louisiana,  III,  89. 


134         J-AW  AND  POLICY  OF  ANNEXATION 

2.  If  an  act  of  Congress  extends  of  its  own  force 
to  the  ceded  territory  it  displaces  all  laws  inconsis- 
tent with  its  provisions.  This  statement  is  made 
rather  for  the  sake  of  precaution  than  with  a  definite 
suggestion  as  to  its  practical  bearing,  for,  while 
certain  acts  may  be,  perhaps,  in  some  sense  self- 
extending,^  there  has  not  been  established  a  general 
rule  according  to  which  this  quality  should  be  attrib- 
uted. Certainly  self-extending  acts  must  be  excep- 
tional, for  it  is  presumed  that  a  legislature  enacts  a 
law  with  regard  to  the  known  requirements  of  the 
country  then  within  its  jurisdiction,  and  not  to  the 
unknown  requirements  of  after-acquired  territory." 
This  presumption  is  sustained  by  the  common  prac- 
tice of  our  Government,  and  by  our  observance  of 
the  rule,  just  mentioned,  that  the  laws  of  annexed 
territory  generally  subsist  until  they  are  definitely 
superseded  —  a  rule  of  little  value  did  the  general 
statutes  of  the  United  States  extend  to  the  territory 
of  their  own  force. 

The  doctrines  of  the  self-extension  of  the  Consti- 
tution, and  of  the   presumed   non-extension  of  acts 
of  Congress  to  annexed  territory  are  perfectly  recon- 
cilable.    The  Constitution  is  an  organic  law  creating; 
a  government  for  the  United  States,  and  prescribing 
fundamental   rules  for  its    guidance    throughout    its 
dominions.     Acts    of   Congress    are    laws  of  lesser  \ 
dignity.      They    deal    with    the    circumstantial    and  \  \ 
varying   needs  of  the    republic,   and,   except   where  '  ' 
the  Constitution  prescribes  uniformity,  the  places  or 

^  See  Cross  v.  Harrison,  i6  Howard  164,  197  ;  Chicago  &  Pacific 
Ry.  Co.  V.  McGlinn,  114  U.  S.  542,  546. 
-See  U.  S.  V.  Seveloff,  2  Sawyer  311. 


THE    GOVERNING    OE  THE  PHILIPPINES     135 

persons  within  their  purview  are  necessarily  deter- 
minable by  Congress.  When  we  say  that  private 
property  in  the  Philippines  cannot  be  taken  for 
public  use  without  compensation  according  to  the 
Fifth  Amendment,  and  that  at  present  no  one  can 
acquire  land  there  under  the  Homestead  Act,  we  do 
not  suggest  an  inconsistency,  but  attribute  to  the 
organic  principle  and  to  the  circumstantial  statute 
the  proper  function  of  each. 

3.  All  other  laws  of  annexed  territory  stand  until 
changed  by  the  personal  or  delegated  authority  of 
Congress;  and  the  Supreme  Court  will  take  judicial 
notice  of  them  as  though  they  were  the  laws  of  a 
State. ^ 

The  conduct  of  Congress  in  regard  to  the  old 
body  of  law  will  be  judged  quite  as  much  by  the 
things  it  leaves  untouched,  as  by  its  enactments.  To 
point  my  meaning  I  cite  a  recommendation  from  a 
report  of  the  Insular  Commission  on  Porto  Rico,  as 
being  animated  by  a  provincial  and  destructive  spirit 
from  which  Congress  should  be  free  :  "The  Spanish 
"system  of  laws  and  procedure,"  say  the  Commis- 
sioners, '■'■wJiile  not  all  bad,  differs  so  radically  in 
"  principle  and  structure  as  well  as  in  methods  and 
"  forms  from  our  own,  that  in  our  judgment  the  best 
"way  to  Americanize  Porto  Rico  is  to  give  them  [sic] 
"the  benefit  of  our  complete  system.""  And  they 
recommend  the  abolition  of  "all  the  Spanish  laws, 
"civil  and  criminal  code,  code  of  civil  and  criminal 

1  Fremont  v.  U.  S.,  17  Howard  542,  557. 
-  Page  61.     (The  italics  are  mine.) 


136         LAW  AND  POLICY  OF  ANNEXATION 

"practice,  and  all  royal  decrees  applicable  to  Porto 
"  Rico,"  and  the  substitution  of  a  system  based  upon 
what  they  call  "  the  common  law  as  adopted  by  the 
"States  of  the  Union  and  construed  by  the  courts 
"  thereof." 

The  sneer  at  a  system  of  jurisprudence,  the  greater 
part  of  which  was  devised  for  Spain  and  her  colonies 
alike,  and  has  been  lately  revised ;  ^  which  is  akin  to 
the  systems  of  western  Europe,  and,  like  these,  is 
founded  upon  the  most  enduring  work  of  civilization, 
—  the  Roman  law, —  argues  a  provincialism  and 
want  of  judgment  that  go  far  toward  discrediting  the 
report  of  the  Commissioners  as  a  whole,  and  the  "  full 
"code  of  laws"  they  promise  to  submit. 

The  proposal  to  force  the  common  law  upon  the 
people  of  Porto  Rico  is  contrary  to  the  practice  of 
the  country  whence  comes  the  common  law.  English 
colonists  going  to  an  uninhabited  country  take  the 
common  law  with  them  as  the  law  of  the  land ;  -  and 
when  they  go  to  a  barbarous  country  they  take  it  as 
the  law  for  themselves,  and  for  the  natives  who  be- 
come members  of  their  community.^  But  when  Eng- 
land extends  her  sovereignty  over  a  land  wherein  a 
civilized  system  is  established  she  usually  accepts  it 
as  the  basis  of  law.  Thus  we  find  the  Roman-Dutch 
law  in  Ceylon ;  *  the  old  French  law  in  Quebec  ;  ^  the 

1  See  Address  of  Hon.  William  Wirt  Howe,  60  Albany  Law 
Journal  loi. 

2  See  Falkland  Islands  Co.  v.  The  Queen,  2  Moore  P.  C.  C, 
N.S.  266. 

3  See  Advocate-General  'v.  Ranee  Surnomoye  Dossee,  2  Moore 
P.  C.C.,N.S.  22. 

^  Lindsay  v.  Oriental  Bank,  13  Moore  P.  C.  C.  401. 
•■"'See  Exchange  Bank  v.  The  Queen,  11  App.  Cas.  157. 


THE   GOVERNING    OF  THE  PHILIPPINES     137 

French  Civil  Code  in   Mauritius  ;  ^  the  old  Norman 
law  in  Jersey.  '^ 

Examining  the  practice  of  the  United  States  we 
find  that  they  have  carried  the  common  law  to 
sparsely  peopled  districts  in  derogation  of  existing 
systems  —  as  in  the  case  of  the  Mississippi  territory ;  ^ 
but  they  have  never  uprooted  the  law  of  an  impor- 
tant community.  The  case  of  Louisiana  is  especially 
instructive  :  Congress  did  not  supplant  the  civil  law, 
and,  while  the  people  of  the  Territory  soon  adopted 
the  common  law  as  the  rule  in  criminal  cases,  they 
retained  the  old  law  as  the  basis  of  their  general 
jurisprudence.  And  the  present  Civil  Code  of 
Louisiana  is  described  as  being  "  quite  like  that  of 
"  Spain  and  France,  with  some  provisions,  however, 
"introduced  from  New  York  and  England.  The 
"code  of  procedure  resembles  the  procedure  of 
"  France  and  Spain,  and  is  essentially  the  practice 
"of  the  late  Roman  law  adapted  to  modern  con- 
"ditions."*  The  common  law  supplanted  the  old 
system  in  Florida  and  California,  but  not  by  order 
of  Congress.  The  inhabitants,  acting  through  a 
Territorial  legislature  in  one  case,  and  a  State  legis- 
lature in  the  other,  soon  changed  much  of  the  law 
to  conform  to  the  usage  of  the  dominant  race. 

The  body  of  Spanish  law  is  partly  repugnant  to 
our  Constitution,  especially  in  the  criminal  branch. 
It  may   be  partly   unsuited  to   the  new   conditions. 

1  Lang  V.  Reid,  12  Moore  P.  C.  C.  72. 

2  La  Cloche  v.  La  Cloche,  3  L.  R.  P.  C.  125. 

3  Pollard  V.  Hagan,  3  Howard  212,  227. 
•*  See  Mr.  Howe's  Address  above  cited. 


138        LAW  AND  POLICY  OF  ANNEXATION 

Federal  courts  will  administer  in  the  islands,  as  else- 
where,   a  general   commercial    law    for    the    United 
States ;  but  so  far  as  this  Spanish  law  is  the  basis  of 
personal  and  property  rights  in  the  Philippines,  let 
it   be  amended  in  the  interests   of  the  islanders,   if 
need  be,   not   supplanted  because  it  is  irksome  to  a 
few  Americans.      In  thus  respecting  the  local  law  we 
shall  act  in  harmony  with  the  spirit  of  our  Constitu- 
tion.     "  In  the  future  growth  of  the  nation,"  said  the 
Supreme  Court,  just  before  the  beginning  of  the  late 
war,  "as  heretofore,  it  is  not  impossible  that  Con- 
'  gress  shall  see  fit  to  annex  territories  whose  juris- 
'  prudence  is  that  of  the  civil  law.     One  of  the  con- 
'  siderations  moving  to  such    annexation  might   be 
'  the  very  fact  that  the  territory  so  annexed  should 
'enter   the    Union    with    its    traditions,    laws,    and 
'  systems  of  administration  unchanged.      It  would  be 
'  a  narrow  construction  of  the   Constitution   to   re- 
'  quire  them  to  abandon  these,  or  to  substitute  for  a 
'  system    which  represented  the  growth  of  genera- 
'  tions    of  inhabitants    a  jurisprudence  with    which 
'  they  had   had   no  previous  acquaintance   or  sym- 
'  pathy."  ^ 

La7iguage 

The  Insular  Commission  says  in  its  report  on 
Porto  Rico:  "The  official  language  of  the  island  to 
"  be  the  English  language,  but  temporarily  the 
"  pleadings  and  proceedings  in  the  first  three  named 
"  courts  to  be  called  '  Porto  Rican '  courts  may  be  in 
"  Spanish  and  in  the  Federal  and  Supreme  Courts  in 
1  Holden  v.  Hardy,  169  U.  S.  366,  389. 


THE   GOVERNING   OF  THE  PHILIPPINES     139 

"  English.     An  official  interpreter  shall  be  provided 
"  for  each  court."  ^ 

Naturally,  English  will  be  the  medium  of  inter- 
course between  the  Federal  Government  and  the 
governments  of  the  islands,  and  the  official  language 
of  the  federal  courts.  But  these  requirements  will 
not  affect  the  islanders  generally,  and  the  inconve- 
nience of  translation  and  interpretation  must  be 
accepted  as  an  inevitable  result  of  annexation.  Rut 
the  recommendation  that  English  shall  be  the 
"official  language  of  the  island"  suggests  a  hard- 
ship that  perhaps  the  Commissioners  did  not  intend, 
and  Congress  surely  will  never  inflict.  "  Official 
"language"  in  its  broad  meaning  is  the  language  in 
which  a  government  conducts  all  the  public  business, 
publishes  the  laws,  and  communicates  with  the 
people  through  officials  of  every  degree,  and  it  is  the 
language  of  all  documents  of  record.  Now  we  may 
hope  that  the  necessary  employment  of  English,  the 
obvious  advantage  of  acquiring  it,  and  the  encourage- 
ment of  our  Government  will  promote  its  use  in 
Porto  Rico  'and  the  Philippines,  but  we  should  not 
attempt  to  force  it  upon  either,  directly  or  indirectly. 
A  just  government  will  respect  the  mother  tongue  of 
a  people  over  whom  it  assumes  dominion.  The 
persistency  of  mother  tongue  has  overcome  most 
brutal  efforts  to  supersede  it. 

So  far  as  sweeping  changes  in  law  and  language 
would  promote  the  interests  of  American  office- 
seekers,  and  the  convenience  of  a  few  American 
settlers,  they  are  not  worthy  of  consideration.  As 
they  would  impose  qualifications  for  local  office  that 

1  Page  66. . 


I40         LAW  AND  POLICY  OF  ANNEXATION 

would  exclude  islanders  generally,  and  for  know 
ledge  of  local  affairs  that  would  make  them  strangers 
in  their  own  country,  they  are  altogether  vicious. 
Yet  if  these  changes  be  seriously  considered,  the 
motive  will  not  be  consciously  bad,  but  rather  an 
enthusiastic  notion  that  we  ought  to  "  Americanize  " 
the  islanders  by  process  of  law.  Whereas  we  should 
rely  upon  a  wise  policy  and,  above  all,  upon  the 
example  and  tact  of  the  men  who  develop  it  person- 
ally to  the  islanders  to  lead  them  to  a  better  estate. 


Religious  Institutions 

Our  attitude  toward  religious  institutions  in  the 
annexed  territory  involves  problems  of  great  interest, 
and  some  of  serious  difficulty. 

Excepting  the  self-explaining  prohibition  of  any 
religious  test  as  a  qualification  for  office,  the  position 
of  religion  under  the  Constitution  is  defined  by  the 
clause:  "Congress  shall  make  no  law  respecting  an 
"  establishment  of  religion,  or  prohibiting  the  free 
"exercise  thereof"  "  Free  exercise"  does  not  mean 
unbridled  license.  "  It  was  never  intended  or  sup- 
"  posed,"  said  the  Supreme  Court,  "that  the  Amend- 
"  ment  could  be  invoked  as  a  protection  against 
"legislation  for  the  punishment  of  acts  inimical  to 
"the  peace,  good  order,  and  morals  of  society";^ 
and  so  the  Mormon  Church  was  not  permitted  to 
plead  polygamy  as  a  protected  tenet  of  religion. 
Whether  the  Mohammedans  of  Sulu  would  have  a 

^  Davis  V.  Eeason,  133  U.  S.  2,2^2^,  342.    See  also  Mormon 
Church  V.  U.  S.,  131  U.  S.  i. 


THE    GOVERNING    OF  THE  PHILIPPINES     141 

legal  right  to  object  to  an  act  of  Congress  forbidding 
polygamy  I  do  not  discuss,  because  its  abolition 
should  be  sought  through  moral  influences  and  not 
by  repressive  laws.  The  sufficient  reason  for  distin- 
guishing polygamy  in  Sulu  from  polygamy  in  Utah 
is  that  the  Mohammedans  are,  like  our  tribal  Indians, 
a  separate  people,  a  peculiar  community  who  may 
maintain  this  traditional  institution  without  affecting 
the  great  community  of  the  republic.  Our  Gov- 
ernment, however,  has  the  right  to  forbid  practices 
so  brutal  that  no  plea  can  be  permitted  to  excuse 
their  perpetration,  and  it  has  sometimes  exercised 
this  right  in  the  case  of  tribal  Indians. 

The  provision  that  Congress  "  shall  make  no  law 
"  respecting  an  establishment  of  religion  "  plainly 
forbids  all  legislation  in  support  of  ecclesiastical 
work  and  instruction,  but  lately  it  has  been  decided 
that  Congress  may  appropriate  money  for  hospital 
buildings  for  the  reception  of  poor  patients  at  the 
public  charge,  the  hospital  being  a  secular  corpora- 
tion under  the  management  of  a  Roman  Catholic 
sisterhood.^ 

Whether  this  provision  operates  to  dissolve  a  rela- 
tion between  church  and  state  existing  in  territory 
prior  to  its  annexation  has  never  been  determined 
judicially,  but  this  is  its  accepted  and  true  effect, 
because  under  the  new  regime  the  state  cannot  per- 
form the  duties  imposed  by  such  a  relation.  The 
Roman  Catholic  Church  no  longer  enjoys  in  our  new 
possessions  exclusive  recognition,  nor  a  right  to 
aid  from  the  state,  though,  perhaps,  under  the  rule 

1  Bradfield  v.  Roberts,  175  U.  S.  291. 


142         LAW  AND  POLICY  OF  ANNEXATION 

in  Bradfield  v.  Roberts,  assistance  may  be  given  to 
worthy  public  charities  managed  by  rehgious  organi- 
zations. 

The  critical  ecclesiastical  question  in  our  new 
possessions  concerns  the  friars  in  the  Philippines. 
While  awaiting  full  information  for  a  thorough 
understanding  of  this  question,  the  fact  of  discontent 
with  the  friars  is  patent  enough  to  justify  some  com- 
ment and  suggestion. 

Any  discontent  caused  by  the  exercise  of  tem- 
poral power,  or  by  the  influence  of  a  privileged 
class,  should  disappear  with  the  divorce  of  state  from 
church,  and  the  abolition  of  class  privilege.  Discon- 
tent arising  from  any  abuse  of  spiritual  power  in- 
volves ecclesiastical  matters  placed  by  our  law  beyond 
state  interference. 

The  possession  of  large  tracts  of  land  by  the  friars 
seems  to  be  the  main  source  of  their  power,  and  it  is 
charged  that  they  have  not  a  valid  tide  to  the 
greater  part  of  their  holdings.  This,  I  believe,  is 
the  first  time  the  United  States  have  been  confronted 
with  so  serious  a  question  of  this  kind  in  new  pos- 
sessions, the  mission  lands  in  California  havine  been 
readily  determined  to  be  held  in  trust  for  the  public 
because  Mexico  had  secularized  them  prior  to  the 
cession.^  A  clause  in  the  Eighth  Article  of  the 
Treaty  of  Paris  has  been  criticized,  on  the  erroneous 
supposition  that  it  assures  to  the  Roman  Catholic 
Church  the  possession  of  all  property  in  its  occupa- 
tion.     In   fact,  the  clause   simply  affirms   the  moral, 

^  See  U.  S.  V.  Cervantes,  i8  Howard  553;  Faxon  v.  U.  S.,  171 
U.  S.  244. 


THE   GOVERNING   OF  THE  PHILIPPINES     143 

and,  in  our  case,  the  constitutional  obligation  to 
respect  vested  rights  of  property,  leaving  open  the 
very  question  of  present  interest,  whether  the  friars 
have  a  legal  title.  President  McKinley  has  instructed 
the  Philippine  Commission  to  investigate  this  ques- 
tion,^ though  not,  as  I  understand,  to  adjudicate  it, 
for  this  can  be  done  only  by  a  competent  tribunal. 
It  would  seem,  however,  that  Congress  might  adopt 
a  report  of  the  Commission  as  the  basis  of  a  suit 
before  a  regular  court. ^ 

If  after  a  just  settlement  of  the  land  question  the 
presence  of  the  friars  in  the  Philippines  should  be 
really  inimical  to  the  peace  of  the  islands,  it  is  to  be 
hoped  that  the  Church  will  transfer  them  to  con- 
genial fields  and  relieve  the  United  States  of  a 
vexatious,  perhaps  an  insoluble,  problem.  Other 
countries  have,  at  times,  found  no  difficulty  in  expel- 
ling objectionable  religious  orders  and  even  in  confis- 
cating their  property,  but  the  United  States  are 
bound  to  respect  both  religion  and  property  :  They 
are  forbidden  to  interfere  at  all  with  the  one ;  they 
are  empowered  to  take  the  other  only  for  public  use 
and  upon  payment  of  compensation. 

1  See  message  of  December  3,  1900. 

2  See  U.  S.  V.  Ritchie,  17  Howard  525. 


CHAPTER   V 
THE  ALIENATION   OF  THE  PHILIPPINES 

I  have  investigated  the  status  of  the  Philippines, 
and  I  find  that  our  title  to  them  Is  as  perfect  in  law 
as  our  title  to  the  city  of  Washington,  and  that,  like 
that  city,  they  are  part  of  the  United  States. 

I  have  investigated  the  position  of  the  Constitu- 
tion with  regard  to  the  Philippines,  and  I  find  that, 
being  a  part  of  the  United  States,  they  are  within  the 
purview  of  many  important  provisions. 

I  have  considered  the  governing  of  the  Philippines, 
and  I  find  no  want  of  legitimate  power,  yet  an  ac- 
tual preference  for  illegitimate  power  in  the  intrusion 
of  the  President  into  the  domain  of  Congress. 

Mainly,  I  have  written  as  though  there  were  no 
question  of  our  renouncing  the  sovereignty  of  the 
islands,  for  the  reason  that  opportunity  for  renuncia- 
tion in  no  wise  excuses  us  from  respecting  the  status 
quo  and  its  obligations ;  yet  the  technical  legitimacy 
of  our  possession  neither  palliates  its  real  offense, 
nor  suggests  its  permanence.  The  annexation  of 
the  Philippines  is  not  a  cross  to  be  borne  —  which 
seems  to  be  the  best  that  can  be  said  for  it.  It  is  a 
blunder  to  be  retrieved. 

There  is  a  presumption  against  the  propriety  of 
alienating   national   territory,   and  this   is   generally 

144 


THE  ALIENATION  OF  THE  PHILIPPINES    145 

conclusive  where  the  territory  has  been  dehberately 
acquired,  or  long  occupied,  or,  above  all,  where  it  is 
identified  with  the  rest  of  the  country  through 
national  unity  and  community  of  interest.  These 
considerations  are  not  pertinent  in  the  case  of  the 
Philippines.  At  the  outbreak  of  the  war  with  Spain 
the  American  people  neither  wished  nor  expected  to 
annex  the  islands,  and,  whatever  personal  expectations 
of  aggrandizement  may  have  lurked  behind  the  plan 
of  campaign  in  the  East,  the  Administration,  though 
it  will  not  plead  ignorance  of  a  probable  opportunity, 
maintains  that  aggrandizement  was  not  intended. 
Indeed,  the  most  common  argument  for  annexation  is 
really  an  apology  :  The  law  of  war  forced  us  to  the  isl- 
ands ;  the  law  of  necessity  chained  us  there.  Never 
in  our  history  was  so  important  an  acquisition  under- 
taken so  lightly,  and  accomplished  with  so  little  pride 
of  achievement.  Our  occupation  of  the  Philippines 
is  not  only  of  recent  date,  but  for  an  indefinite  period 
is  likely  to  be  merely  an  armed  occupation.  Race  ha- 
tred confronts  us.  National  unity  is  beyond  proph- 
ecy. Far  from  even  desiring  community  of  interests, 
we  actually  tax  the  trade  between  the  islands  and 
the  mainland,  and  would  view  an  immigration  of 
Filipinos  as  an  Asiatic  plague.  Add  that  the  Philip- 
pines are  not  even  an  outer  line  of  defense,  but  rather 
a  vulnerable  outpost,  and  are  neither  the  home  of 
American  colonists  nor  the  location  of  American 
investments,  and  it  is  perceived  that  we  are  not  em- 
barrassed by  considerations  that  usually  place  aliena- 
tion of  territory  beyond  the  pale  of  discussion,  but 
may  consider  freely  the  questions  of  right,  terms,  and 
expediency. 
10 


1 


I 


146         LAW  AND  POLICY  OF  ANNEXATION 
THE    RIGHT    OF    ALIENATION 

The  constitutions  of  some  countries  forbid  any 
alienation  of  territory.  This  prohibition  will  not 
stand  in  the  way  of  a  conqueror;  and,  indeed, 
throughout  this  discussion  I  assume  that  a  ceding 
state  is  acting  free  from  the  foreign  duress  that  practi- 
cally effaces  domestic  law.  Nor  does  it  cover  a  sur- 
render of  claims  to  disputed  territory,  as  appears  by 
the  settlement  of  the  boundary  controversy  between 
Great  Britain  and  Venezuela,  where  the  latter,  though 
forbidden  to  alienate  territory,  accepted  an  award 
dismissing  certain  claims.  The  purpose  of  the  prohi- 
bition seems  to  be  to  assure  an  ill  regulated  state 
against  loss  of  territory  by  the  act  of  improvident  or 
corrupt  rulers. 

Generally,  and  invariably  among  the  stronger  na- 
tions, with  the  right  to  acquire  land  there  is,  logically, 
a  right  to  cede  it.  And  voluntary  cession  is  not  un- 
exampled: Witness  the  cession  of  Louisiana  by  France 
to  the  United  States,  of  Alaska  by  Russia  to  the 
United  States,  of  Java  and  Heligoland  by  Great 
Britain  to  Holland  and  Germany  respectively,  of  St. 
Bartholomew  by  Sweden  to  France. 

The  law  makes  the  Philippines  a  part  of  the 
United  States,  but  it  does  not  compel  us  to  hold  them 
forever.  The  right  of  alienation  is  conceded  by  the 
Administration  in  the  agreement  with  the  Sultan  of 
Sulu,  which  provides  that  the  United  States  will  not 
sell  the  Sulu  Islands  without  his  consent.  The  con- 
cession is  important  as  showing  that,  in  the  opinion 
of  the  Administration,  the  annexation  of  the  Philip- 


THE  ALIENATION   OE  THE  PHILIPPINES    147 

pines  has  not  closed  discussion  as  to  their  future  dis- 
position, but  the  provision  itself  is  derogatory  to  our 
sovereignty.  We  acquired  the  Sulus  from  Spain 
without  the  consent  of  the  Sultan,  and  we  should  not 
require  his  permission  to  dispose  of  them. 

Each  country  determines  for  itself  the  procedure 
in  regard  to  cession.  Some  constitutions,  that  of 
France  among  them,  require  treaties  of  cession  to  be 
submitted  to  the  legislature.^  The  Judicial  Commit- 
tee of  the  Privy  Council  is  strongly  of  the  opinion  that 
the  treaty-making  body  of  Great  Britain  — the  Crown 
in  Council  —  has  full  power  to  cede  territory,^  and 
this  seems  to  be  justified  by  common  precedent ; 
nevertheless,  in  1890,  the  Crown  asked  the  consent 
of  Parliament  before  ceding  Heligoland  to  Germany.^ 

The  United  States  have  never  ceded  territory,  but 
in  settling  international  boundaries  their  treaty- 
making  body  has  yielded  claims  to  territory ;  and 
in  the  case  of  the  Northeast  Boundary  the  consent  of 
the  States  interested  was  obtained.*  Should  a  project 
of  cession  affect  State  land  the  State's  consent  must 
be  secured,^  but  outlying  territory  the  Federal  Gov- 
ernment is  as  free  to  cede,  as  to  acquire  without  the 
express  consent  of  the  States. 

1  Esmein,  Elements  de  Droit  Constitutionnel,  2d  Ed.  533. 

2  Damodhar  Gordhan  v.  Deoram  Kanji,  i  App.  Cas.  332,  373. 

3  See  Anson,  The  Law  and  Custom  of  the  Constitution,  The 
Crown,  2d  Ed.  299. 

•*  See  Moore,  International  Arbitrations,  I,  153;  Fort  Leaven- 
worth R.  V.  Lowe,  114  U.  S.  525,  541. 

•'■  See  Life  and  Letters  of  Joseph  Story,  II,  286-289,  for  his  own 
and  Marshall's  thoughts  on  the  question  of  cession  under  the  pow- 
ers to  make  war  and  peace. 


148         LAW  AND  POLICY  OF  ANNEXATION 

As  I  have  found  no  legal  objection  to  our  treaty- 
making  body  annexing  land  without  the  consent  of 
the  House  of  Representatives/  I  find  none  to  its  ced- 
ing land  of  its  own  motion :  And  territory  may  be 
severed,  as  well  as  annexed  by  joint  resolution  of 
Congress. 

There  is  no  merit  in  the  assertion  that  recognition 
of  the  Constitution  in  the  Philippines,  with  its  conse- 
quence of  conferring  citizenship  upon  Filipinos,  will 
preclude,  legally  or  morally,  our  withdrawal  from 
the  islands  because  of  its  consequence  of  alienating 
citizens. 

As  the  extension  of  sovereignty  over  territory  is  a 
political  matter  not  reviewable  by  the  courts,^  so  is 
its  withdrawal;  and  in  the  latter,  as  in  the  former  case 
the  exercise  of  power  is  not  preventable  by  the  in- 
habitants.^ If  we  chose  to  accord  to  Filipinos  permis- 
sion to  elect  to  retain  American  citizenship  it  would 
be  coupled  with  an  obligation  to  migrate  hither 
within  a  given  time,  and  we  could  afford  to  receive 
the  handful  of  islanders  having  the  disposition  and 
the  money  to  accept  the  condition. 

Morally,  the  assertion  is  disingenuous.  There  is 
nothing  sacred  about  a  "citizenship"  resented  by 
most  of  its  recipients,  and  begrudged  by  all  its  donors. 


THE    TERMS    OF    ALIENATION THE    PROTECTORATE 

The  negotiations  which  it  is  to  be  hoped  will  effect 
the  rehabilitation  of  China  may  disclose  a  solution  of 

1  See  supra,  p.  6.   -  See  supra,  p.  7.   '^  See  supra,  p.  61. 


THE  ALIENATION  OF  THE  PHILIPPINES     149 

our  Philippine  problem.  The  perseverance  of  the 
United  States  in  their  refusal  to  acquire  land  in 
China  should  not  only  contribute  to  a  just  settlement 
of  this  great  question  of  the  East,  but  should  enable 
them  to  claim  the  consideration  of  the  Powers  for 
their  purposes  in  regard  to  the  Philippines.  At 
present,  however,  the  result  of  these  negotiations  is 
too  uncertain  to  suggest  any  definite  course  for  the 
United  States  in  respect  of  the  Philippines.  As  now 
appears,  the  United  States,  withdrawing  their  sover- 
eignty from  the  islands,  will  be  persuaded  to  a  pro- 
tectoral  relation  with  a  Philippine  state. 

The  President  said  in  his  annual  message  of  1899:^ 
"The  sutrg-estion  has  been  made  that  we  could 
"  renounce  our  authority  over  the  islands,  and,  giving 
"them  independence,  could  retain  a  protectorate  over 
"them.  This  proposition  will  not  be  found,  I  am 
"sure,  worthy  of  your  serious  attention.  Such  an 
"arrangement  would  involve  at  the  outset  a  cruel 
"breach  of  faith.  It  would  place  the  peaceable  and 
"loyal  majority,  who  ask  nothing  better  than  to  ac- 
"  cept  our  authority,  at  the  mercy  of  the  minority  of 
"armed  insurgents.  It  would  make  us  responsible 
"for  the  acts  of  the  insurgent  leaders  and  give  us  no 
"power  to  control  them.  It  would  charge  us  with 
"the  task  of  protecting  them  against  each  other  and 
"defending  them  against  any  foreign  power  with 
"which  they  chose  to  quarrel.  In  short,  it  would 
"take  from  the  Confjress  of  the  United  States  the 
"power  of  declaring  war  and  vest  that  tremendous 
"prerogative  in  the  Tagal  leader  of  the  hour." 
The  humiliating  relationship  here  depicted  is  a  trav- 

1  Page  44. 


i:io         LAW  AND  POLICY  OF  ANNEXATION 


5 


esty  of  a  protectorate.  A  brief  examination  of  the 
law  and  custom  of  protectorates  will  show  that  the 
United  States  may  assume  the  office  of  protector 
without  allowing  armed  insurgents  to  terrorize  peace- 
able islanders,  or  permitting  an  Aguinaldo  to  whistle 
the  American  people  to  arms. 

"  Protectorate  "  is  a  name  for  so  great  a  variety  of 
political  relationships  that  it  defines  none  accurately, 
but  a  few  general  observations  will  suggest  the  rela- 
tion I  have  in  view.  The  protectorate  will  be  founded 
upon  a  treaty  or  agreement  with  a  Philippine  state 
whose  organization  and  fundamental  law  shall  be 
satisfactory  to  the  United  States.  I  do  not  mean 
that  we  should  draft  an  ideal  constitution  for  the  isl- 
ands as  did  Locke  for  the  Carolinas,  nor  commend, 
as  of  course,  our  own  as  the  perfect  model ;  but  we 
must  condition  our  protection  upon  the  adoption  of  a 
practicable  scheme  of  government  as  enlightened  as 
we  have  a  right  to  expect.  \/\-}^ 

The  study  of  the  protectoral  relations  of  other  gov- 
ernments will  be  profitable,  but  is  not  likely  to  sug- 
gest a  model. ^    Apart  from  the  Mohammedan  districts, 

1  Appendix  B  contains  a  ityf  documents  illustrating  some  of 
the  methods  by  which  other  nations  have  assumed  more  or  less 
authority  in  territory  without  formally  incorporating  it  in  their 
dominions.  Much  of  the  documentary  history  of  this  subject  will 
be  found  in  Le  Regime  des  Protectorats,  Brussels,  1899;  Aitchison, 
Collection  of  Treaties  (British  India) ;  Holland,  The  European 
Concert  in  the  Eastern  Question ;  Hertslet,  Map  of  Africa  by 
Treaty.  For  the  theory  and  practice  of  the  protectoral  relation 
consult  Despagnet,  Essai  sur  les  Proteciorats  ;  Westlake,  Chapters 
on  the  Principles  of  International  Law;  Hall,  Foreign  Jurisdiction 
of  the  British  Crown;  Lee-Warner,  The  Protected  Princes  of 
India;  Ilbert,  The  Government  of  India,  Ch.  VII. 


THE  ALIENATION  OF  THE  PHILIPPINES    151 

which  appear  to  be  much  like  the  Protected  States 
of  the  Malay  Peninsula,  and  may  require  separate 
treatment,  the  Philippines  are  quite  dissimilar  from 
any  country  now  under  protection,  for  we  find  there 
a  population  chiefly  of  Malay  origin  whose  dominant 
portion  has  been  Christianized  and  civilized  to  a  de- 
gree by  Spanish  influence.  More  importantly,  our 
action  must  be  inspired  by  uncommon  purposes.  A 
protectorate  frequently  precedes  annexation ;  ours 
would  be  the  sign  of  separation.  A  protectorate 
is  generally  a  cloak  for  substantial  ownership,  but  if 
ownership  be  our  real  purpose  we  must  continue  to 
govern  the  islands  constitutionally  as  part  of  the 
United  States,  and  not  set  up  a  mock  state  through 
which  our  government  may  give  arbitrary  orders  to 
a  subject  people.  A  protectorate  is  usually  estab- 
lished without  period,  though  its  end  may  be  condi- 
tioned upon  the  happening  of  an  unexpected  event; 
thus,  if  I  may  use  this  case  in  illustration,  it  is  written 
that  Great  Britain  shall  hold  Cyprus  until  Russia 
shall  surrender  Kars.  With  a  clear  understanding 
that  our  shortcominors  at  Washington  have  not  neces- 
sarily  saddled  us  with  interminable  responsibilities  in 
the  Philippines,  our  protection  should  be  accorded  in 
the  expectation  of  its  withdrawal.  Assuming  that  a 
protectorate  will  be  declared  with  a  reasonable  anti- 
cipation that  a  Philippine  state  will  one  day  be  able 
to  maintain  a  place  among  the  lesser  states  of  the 
world,  the  treaty  of  protection  should  fix  its  own 
duration. 

It  is  asserted  that  a  Philippine  state  is  impossible, 
because  the  Filipinos  are  incapable  of  maintaining  a 


152         LAW  AND  POLICY  OF  ANNEXATION 

government.  On  the  other  hand  we  have  good  evi- 
dence of  the  orderly  administration  of  a  great  part 
of  Luzon  by  the  insurgent  government  after  the  ces- 
sation of  hostihties  in  the  summer  of  1898.^  Further 
evidence  of  capacity  appears  in  the  Report  of  the 
First  PhiHppine  Commission.  The  Commissioners 
describe  the  FiHpinos  as  being  "of  unusually  promis- 
"ing  material";^  "strongly  desirous  of  better  educa- 
"tional  advantages";^  and  say  that,  after  the  insurrec- 
tion has  been  suppressed,  the  majority  will  be  found 
to  be  "good,  law-abiding  citizens."*  They  testify  to 
the  marked  ability  of  the  educated  class,  who,  "though 
"constituting  a  minority,  are  far  more  numerous  than 
"is  generally  supposed,  and  are  scattered  all  over  the 
"archipelago."^  In  the  matter  of  government  the 
Commissioners  remark  a  striking  likeness  between 
the  Filipino  ideal  and  American  achievement,  going 
so  far  as  to  say  that  the  leading  Filipinos  have  se- 
lected "almost  precisely  the  political  institutions  and 
"arrangements  which  have  been  worked  out  in  prac- 
"tice  by  the  American  people;  and  these  are  also, 
"though  less  definitely  apprehended,  the  political  ideas 
"of  the  masses  of  the  Philippine  people  themselves."*' 
Finally,  the  Commissioners  cap  their  appreciation  by 
earnestly  recommending  for  the  islands  a  territorial 
government  substantially  of  the  first  class. "^  It  is  true 
that  in  spite  of  these  tributes  to  Philippine  compe- 
tency the  Commissioners  are  at  some  pains  to  dis- 
credit the  possibility  of  establishing  a  protectorate ;  ^ 
but,  like  the  President,  whose  views  they  reflect,  they 

1  See  especially  Senate  Document  66,  56th  Congress,  ist  Sess. 

2  1,  120.  ■*  P.  120.         •'Pp.  91,  119.        8 Pp.  99,  103. 
^P.  41.  •''P.  120.         '^ Pp.  Ill,  112. 


THE  ALIENATION  OF  THE  PHILIPPINES    153 

narrow  their  consideration  of  protectorates  to  the  ob- 
viously impracticable.  And  their  disapproval  must 
be  weighed  with  due  regard  to  the  fact  that  a  recom- 
mendation of  a  method  of  relinquishing  sovereignty, 
or  even  an  open-minded  inquiry  for  practicable 
methods,  would  have  been  altogether  foreign  to  their 
official  instructions. 

The  mature  opinion  of  the  present  Philippine 
Commissioners  is  not  at  hand,  but  the  system  of 
government  they  are  striving  to  establish  would  seem 
to  be  too  advanced  for  a  people  really  lacking  the 
capacity  for  organization. 

I  am  not  much  interested,  however,  in  the  taking 
of  testimony  in  regard  to  capacity  for  self-govern- 
ment, because,  generally  speaking,  I  do  not  consider 
it  a  fit  subject  for  our  adjudication.  A  nation  is  not 
authorized  to  deny  the  capacity  of  an  alien  people  to 
make  its  own  laws,  and  the  right  to  live  its  own  life ; 
and  rarely  does  a  nation  assume  this  authority  except 
to  gloss  a  purpose  of  conquest.  This  is  not  to  say 
that  intervention  may  not  be  justified  by  anarchy  or 
brutal  despotism,  for  in  neither  case  is  there  a  pre- 
tense of  government  by,  or  for  the  people. 

In  the  case  of  the  Filipinos  we  have  no  right  to 
assume  that  they  cannot,  under  our  temporary  pro- 
tection, organize  a  government  suited  to  their  condi- 
tion and  requirements,  and  we  shall  appreciate  this 
truth  the  moment  we  abandon  the  idea  that  the  isl- 
ands should  be  held  in  the  interest  of  American  trade. 
And  we  maybe  assured  that  every  generous  purpose 
in  regard  to  the  islanders  will  be  more  fully  devel- 
oped  in   a    Philippine  state,  than   in  a  discontented 


154         LAW  AND  POLICY  OF  ANNEXATION 

American  Territory.  Indeed,  I  believe  that  legiti- 
mate trade  itself  will  fare  better  in  the  state. 

While  it  would  be  premature  to  consider  the  pro- 
tectorate in  detail,  some  of  its  broader  features  may 
be  suggested. 

The  Philippine  state  will  not  be  an  exception  to 
the  rule  that  a  protected  state  is  never  a  sovereign 
among  sovereigns.  It  will  not  be  officially  known  in 
the  family  of  nations,  for  it  will  hold  no  relations  with 
foreign  states,  neither  making  treaties  nor  exchang- 
ing ministers,  nor  will  it  fly  a  national  flag  upon  the 
high  seas.  At  most  points  of  contact  between  the 
state  and  the  world  at  large  the  United  States  must 
stand,  the  advocate  of  its  interests,  the  defender  of 
its  rights.  This  denial  of  official  foreign  intercourse  is 
necessary  if  only  for  the  reason  that  as  the  protector 
must  defend  the  protected,  it  must,  as  far  as  pos- 
sible, deprive  the  latter  of  opportunity  to  quarrel 
with  a  foreign  state  by  taking  into  its  own  strong 
and  competent  hands  the  management  of  foreign 
affairs. 

Considering  that  the  United  States  will  by  pro- 
tecting a  Philippine  state  assume  certain  responsi- 
bilities in  the  islands,  extending  at  least  to  the 
reasonable  protection  of  foreign  interests ;  and  con- 
sidering that  for  a  time  the  new  state  may  be  unable 
to  preserve,  unaided,  the  requisite  order,  the  United 
States  may  reserve  the  right  to  keep  troops  in  the 
islands,  and  to  regulate  the  composition  of  a  native 
militia.  Thus  far  we  shall  perform  a  mere  police 
duty,  undertaken  for  the  common  benefit,  and  requir- 
ino-  only  a  small  force,  diminishing  as  the  new  state 
grows  in  experience.      Our  own  legitimate  interests 


THE  ALIENATION  OF   THE  PHILIPPINES    155 

will  carry  us  no  further.  But  should  foreign  nations 
choose  to  consider  the  Philippines  as  part  of  the 
United  States^  they  would  be  open  to  attack  should 
we  become  involved  in  war,  and  we  must  keep  a 
lareer  force  in  the  islands  during^  the  term  of  our 
protectorate.  To  avoid  this  burden,  and  also  the 
risk  of  makino-  the  islands  the  theater  of  a  war  in 
which  their  people  would  have  no  interest,  the  estab- 
lishment of  a  protectorate  should  be  followed  by  ne- 
gotiations with  the  Maritime  Powers  looking  to  the 
neutralization  of  the  Philippines. 

A  protectorate  is  not  necessarily  unconstitutional. 
Provided  it  be  an  honest  arrangement,  and  not  a  sub- 
terfuge for  complete  control,  it  is  among  those  foreign 
relations  maintainable  by  the  United  States,  as  well 
because  they  are  one  of  the  family  of  nations  as 
by  the  express  contemplation  of  the  Constitution. 
While  the  United  States  have  never  entered  into  a 
relation  with  another  state  like  that  suggested  in  the 
case  of  the  Philippines,  they  have  occasionally  as- 
sumed a  protectoral  office,  notably  in  respect  of  the 
possible  routes  of  interoceanic  canals.  And  our 
relation  to  the  island  of  Tutuila  is  not  only  distinctly 
protectoral,  but,  formerly,  was  complicated  by  part- 
nership with  Great  Britain  and  Germany  in  a  protec- 
torate over  the  entire  Samoan  group. 

Our  courts  have  never  been  required  to  define  the 
position  of  the  United  States  in  respect  of  protected 
territory,  but  it  may  be  indicated.  Bearing  in  mind 
that  the  establishment  of  a  protectorate  will  mark 
our  relinquishment    of  territorial   sovereignty,   it    is 

^See  supra ^  p.  12. 


iS6         LAW  AND  POLICY  OF  ANNEXATION- 

perceived  that  the  PhiHppines  will  pass  straightway 
from  the  territorial  jurisdiction  of  Congress  to  that  of 
the  protected  state  ;  for,  as  Mr.  Justice  Story  states  the 
rule,  "The  laws  of  no  nation  can  justly  extend  be- 
"  yond  its  own  territories,  except  so  far  as  regards  its 
"  own  citizens.     They  can  have  no  force  to  control  the 
"sovereignty  or  rights  of  any  other  nation  within  its 
"own  jurisdiction.     And,  however  general  and  com- 
"  prehensive  the  phrases  used  in  our  municipal  laws 
"may  be,  they  must  always  be  restricted  in  construc- 
"tion  to  places  and  persons  upon  whom  the  legis- 
"lature  have  authority  and  jurisdiction."  ^     Another 
statement  of  the   Supreme   Court  will  suggest  our 
manner  of  dealing  with  the  protected  state.      "  By  the 
"  Constitution  a  government  is  ordained  and  estab- 
"lished  'for  the  United  States  of  America,'  and  not 
"  for  countries  outside  of  their  limits.  .   .   .  The  Con- 
"stitution  can  have  no  operation  in  another  country. 
"When,  therefore,  the  representatives  or  officers  of 
"our  government  are  permitted  to  exercise  authority 
"of  any  kind  in  another  country,  it  must  be  on  such 
"conditions  as  the  two  countries  may  agree,  the  laws 
"of  neither  one  being  obligatory  upon  the  other." ^ 
This  was  written  of  our  consular  jurisdiction  in  Japan, 
now  ended  by  limitation,  but  it  applies  to  any  pro- 
tectoral  relation  we  may  assume  toward  the  Philip- 
pines.     Upon   the   establishment  of  a   protectorate, 
the  Federal  Government  will  be  no  longer  the  gov- 
ernment of  the  islands.     Any  influence  it  may  have 
therein  will  be  exerted  in  a  foreign  land  by  agree- 
ment  with    its    sovereign.     Our    rights    under    this 

'  The  Apollon,  9  Wheaton  362,  370. 
-  Ross's  Case,  140  U.  S.  453,  464. 


THE  ALIENATION  OF  THE  PHILIPPINES    157 

agreement  will  be  maintained  by  the  President  like 
other  treaty  rights.  Any  legislation  that  Congress 
may  enact  in  regard  to  the  Philippines  will  be  of  an 
ancillary  nature,  based  upon  a  general  power  to  pro- 
vide the  means  for  maintaining  the  lawful  rights  and 
obligations  of  the  United  States  without  regard  to 
locality.  This  jurisdiction  of  Congress  is  not  terri- 
torial jurisdiction  in  a  foreign  country.  It  is  a  power 
to  be  exercised  in  furtherance  of  rights  lawfully  ac- 
quired by  the  United  States  in  that  country.  That 
is  to  say,  Congress  cannot  impose  its  will  on  a 
Philippine  state,  because  it  is  the  legislature  of  the 
United  States  only,  but  it  may  aid  in  effectuating 
the  rights  defined  by  the  treaty  of  protection.  Its 
aid  may  take  the  form  of  new  legislation  :  for  ex- 
ample, an  act  creating  an  international  court  and  de- 
fining its  jurisdiction.  More  often  it  will  be  given 
by  an  appropriation  of  money,  a  precedent  for  which 
is  found  in  the  following  item  inserted  for  some  years 
in  the  act  making  appropriations  for  the  diplomatic 
and  consular  service :  "  For  the  execution  of  the  ob- 
"  ligations  of  the  United  States  and  the  protection  of 
"  the  interests  and  property  of  the  United  States  in 
"the  Samoan  Islands,  under  any  existing  treaty  with 
"the  government  of  said  islands  and  with  the  gov- 
"ernments  of  Germany  and  Great  Britain,  six  thou- 
"  sand  dollars,  or  so  much  thereof  as  may  be  necessary, 
"  to  be  expended  under  the  direction  of  the  President." 

I  have  defined  a  protectorate  on  somewhat  con- 
ventional lines,  but  with  the  hope  that  a  better  com- 
prehension of  conditions  may  permit  even  a  lighter 
hand  on  our  part  than  the  comparatively  light  one  I 


158         LAW  AND  POLICY  OF  ANNEXATION- 

have  suggested.  Indeed,  were  the  islands  free  from 
the  demoralizing  influence  of  war,  we  might  see  our 
way  clear  to  recognizing  a  Philippine  state  needing 
no  protection  at  home,  and  finding  ample  security 
against  foreign  conquest  in  the  power  of  the  United 
States. 

THE    EXPEDIENCY    OF    ALIENATION 

The  United  States,  having  the  right  and  the  op- 
portunity to  withdraw  their  sovereignty  from  the 
Philippines,  are  brought  to  the  question  of  expediency. 
Here  we  are  met  by  the  plea  that  by  taking  the 
islands  we  have  given  bonds  to  the  world  and  the 
islanders  to  hold  them.  A  perverse  guide  to  con- 
duct !  The  world  has  no  rights  in  this  domestic 
matter,  and  while  the  interests  of  the  Filipinos  should 
have  weight  in  determining  the  time  and  manner 
of  disposing  of  our  territories  in  Asia,  the  expediency 
of  disposition  must  be  determined  frankly  in  the 
interests  of  the  American  section  of  the  United  States  ; 
for,  so  far  as  we  are  entitled  to  forecast  the  future  of 
our  republic  from  a  study  of  its  past,  its  strength 
must  forever  lie  here,  not  there.  With  no  thought 
of  repudiating  our  real  duties  in  Asia,  with  the  assur- 
ance that  these  will  be  best  performed  by  upholding 
the  true  ideals  of  the  United  States  in  America,  we 
shall  consider  the  disposition  of  the  Philippines  chiefly 
from  the  American  standpoint. 

Commercial  Considerations 

First  from  the  standpoint  of  commerce.  The 
widespread  desire  for  an  export  trade  in  something 


THE  ALIENATION  OF  THE  PHILIPPINES     159 

besides  foodstuffs  and  a  chance  surplus  of  manufac- 
tures is  a  welcome  event,  though  foreign  war  has 
only  quickened  the  forces  that  have  been  surely 
pressing  us  beyond  the  "home  market,"  so  long  ex- 
tolled as  the  sufficient  field  for  our  energies  —  pro- 
vided we  shut  out  competitors. 

The  acquisition  of  the  Philippines  being  the  strik- 
ing feature  of  our  outward  movement,  their  retention 
has  been  assumed,  mistakenly,  to  be  essential  to  its 
development.  Retention  of  the  Philippines  has  no 
relation  to  the  bulk  of  our  export  trade.  During  the 
fiscal  years  1898- 1900  we  exported  merchandise 
to  the  value  of  $3,852,000,000,  of  which  all  Asia  took 
but  $157,000,000  —  not  very  much  in  excess  of  the 
amount  taken  by  Belgium. 

Retention  of  the  Philippines  is  not  essential  to  the 
very  trade  so  plausibly  asserted  to  depend  upon  it 
—  the  trade  of  Asia,  especially  of  China.  During 
the  fiscal  years  1 898-1 900  our  exports  to  China, 
including  Hong  Kong,  averaged  $20,000,000.  The 
potential  volume  of  this  export  trade  is,  perhaps, 
very  great,  assuming  that  the  affairs  of  China  shall 
be  settled  satisfactorily ;  but  we  must  decline  to 
accept  hysterical  prophecy  about  Asiatic  trade  as  our 
inspiration  to  duty  in  the  Philippines.  It  is  known 
that  when  four  hundred  million  Chinese^  buy  annually 
five  dollars'  worth  of  foreign  goods  per  head  they 
will  buy  $2,000,000,000  worth ;  but  the  date  is  not 
set,  and  were  it  in  sight  our  industrial  community 
would  be  aghast  in  anticipation  of  the  flood  of  cheap 
goods  coming  from  China  in  payment."     It  is  known 

^  If  there  are  so  many. 

2  Sir  Robert  Hart  says :  "  Many  regard  China  as  a  far-distant  land, 


i6o         LAW  AND  POLICY  OF  ANNEXATION 

that  by  drawing  ever-widening  circles  about  Manila 
ever-widening  areas  are  brought  within  its  reach  — 
on  the  map ;  but  the  rulers  of  Hong  Kong,  of  Port 
Arthur,  of  Saigon,  of  Kiao  Chau,  of  Yokohama  may 
find  as  much  fun  and  as  little  profit  in  playing  this 
nursery  game  with  their  own  ports  for  centers.  It  is 
known  that  when  merchants  the  world  over  send 
goods  for  the  mainland  of  Asia  to  Manila,  there 
unlade  and  store  them,  and  reship  them  thence  to 
theirdestination,  Manila  will  indeed  realize  the  pre- 

with  an  immense  population,  but  so  wanting  in  all  that  others  pos- 
sess as  to  be  ready  to  purchase,  in  unlimited  quantities,  whatever 
is  offered  for  sale ;  whereas,  what  is  true  is  this :  China  needs 
neither  import  nor  export,  and  can  do  without  foreign  intercourse. 
A  fertile  soil,  producing  every  kind  of  food,  a  climate  which  favors 
every  variety  of  fruit,  and  a  population  which  for  tens  of  centuries 
has  put  agriculture,  the  productive  industry  which  feeds  and  clothes, 
above  all  other  occupations — China  has  all  this  and  more;  and 
foreign  traders  can  only  hope  to  dispose  of  their  merchandise  therein 
proportion  to  the  new  tastes  they  introduce,  the  new  wants  they  cre- 
ate, and  the  care  they  take  to  supply  what  the  demand  really  means. 
"  The  sanguine  expectations  which  were  expressed  when  treaties 
first  regulated  intercourse,  a  cycle  back,  have  never  been  realized. 
Trade,  it  is  true,  has  grown,  and  the  revenue  derived  from  it  has 
multiplied;  but  as  yet  it  is  far,  far  from  what  our  predecessors 
looked  for;  and  the  reason  is  not  that  the  Chinese  Government 
actively  opposed  foreign  commerce,  but  that  the  Chinese  people 
did  not  require  it.  Chinese  have  the  best  food  in  the  world,  rice; 
the  best  drink,  tea;  and  the  best  clothing,  cotton,  silk,  and  fur; 
and  possessing  these  staples,  and  their  innumerable  native  adjuncts, 
they  do  not  need  to  buy  a  penny's- worth  elsewhere ;  while  their 
Empire  is  in  itself  so  great,  and  they  themselves  so  numerous,  that 
sales  to  each  other  make  up  an  enormous  and  sufficient  trade,  and 
export  to  foreign  countries  is  unnecessary.  This  explains  why 
sixty  years  of  treaty  trade  have  failed  to  reach  the  point  the  first 
treaty  framers  prophesied  for  it." — North  American  Heview,  ]a.n- 
uary,  1901, 


THE   ALIENATION  OF  THE  PHILIPPINES    i6i 

diction  of  the  Philippine  Commission  by  becoming 
"the  distributing  center  of  the  Tar  East";  but  this 
event  must  await  a  discovery  that  transhipment  and 
storage  en  route  lessen  freight  charges. 

Moral  and  Political  Consideratio7is 

Passing  from  commercial  interests,  which  do  not 
require  the  retention  of  the  Philippines,  we  consider 
the  moral  and  political  obligations  of  the  republic ; 
and  these  forbid  it. 

The  annexation  of  the  Philippines  was  accomplished 
with  the  supposition  that  the  islanders,  with  negligi- 
ble exceptions,  would  welcome  our  rule.  This  sup- 
position was  at  best  a  mistaken  one,  discouraged  by 
the  teachings  of  history,  and  unsupported  by  even 
plausible  evidence ;  and  after  the  annexation  the  ab- 
solute demonstration  of  its  falsity  was  persistently 
ignored  in  official  reports  and  utterances  until  on 
October  i,  1900,  General  Mac  Arthur  made  his  first 
report  as  military  governor  of  the  islands.  In  the 
course  of  his  report  General  MacArthur  says: 

"The  Filipinos  are  not  a  warlike  or  ferocious  peo- 
"  pie.  Left  to  themselves,  a  large  number  (perhaps 
"  a  considerable  majority)  would  gladly  accept  Ameri- 
"  can  supremacy,  which  they  are  gradually  coming  to 
"understand  means  individual  liberty  and  absolute 
"security  in  their  lives  and  property.  The  people  of 
"  the  islands,  however,  during  the  past  five  years  have 
"been  maddened  by  rhetorical  sophistry  and  stimu- 
"  lants  applied  to  national  pride,  until  the  power  of 
"  discriminating  in  behalf  of  matters  of  public  concern 
II 


1 62         LAW  AND  POLICY  OF  ANNEXATION 

"or  private  interest  (never  very  strongly  established 
"among  them)  has  for  the  time  being  been  almost 
"entirely  suspended.  As  a  substitute  for  all  other 
"considerations,  the  people  seem  to  be  actuated  by 
"  the  idea  that  in  all  doubtful  matters  of  politics  or 
"war,  men  are  never  nearer  right  than  when  going 
"  with  their  own  kith  and  kin,  regardless  of  the  nature 
"of  the  action,  or  of  its  remote  consequences. 

"This  peculiar  psychological  condition  has  raised 
"practical  difficulties  in  obstruction  of  pacification. 
"  For  example,  most  of  the  towns  throughout  the 
"archipelago,  under  the  advice  and  control  of  mili- 
"tary  authority,  have  organized  municipal  govern- 
"  ments,  for  which  kind  of  local  administration  the 
"people  have  evinced  such  intelligent  capacity  as  to 
"  encourage  the  expectation  of  rapid  progress  in  the 
"art  of  self-government  when  the  larger  political  ad- 
"ministrations  are  organized. 

"The  institution  of  municipal  government  under 
"  American  auspices,  of  course,  carried  the  idea  of 
"exclusive  fidelity  to  the  sovereign  power  of  the 
"  United  States.  All  the  necessary  moral  obligations 
"to  that  end  were  readily  assumed  by  municipal 
"bodies,  and  all  outward  forms  of  decorum  and  loy- 
"  alty  carefully  preserved.  But  precisely  at  this  point 
"  the  psychological  conditions  referred  to  above  began 
"  to  work  with  great  energy  in  assistance  of  insur- 
"  gent  field  operations.  For  this  purpose  most  of  the 
"  towns  secretly  organized  complete  insurgent  mu- 
"nicipal  governments,  to  proceed  simultaneously  and 
"  in  the  same  sphere  as  the  American  governments, 
"  and  in  many  instances  through  the  same  personnel ; 
"that  is  to   say,  the  presidentes  and  town   officials 


THE  ALIENATION  OF  THE  PHILIPPINES    163 

"  acted  openly  in  behalf  of  the  Americans  and  secretly 
"in  behalf  of  the  insurgents,  and,  paradoxical  as  it 
"  may  seem,  with  considerable  apparent  solicitude  for 
"the  interests  of  both.  In  all  matters  touching  the 
"  peace  of  the  town,  the  regulation  of  markets,  the 
"  primitive  work  possible  on  roads,  streets  and 
"bridges,  and  the  institution  of  schools,  their  open 
"  activity  was  commendable ;  at  the  same  time  they 
"  were  exacting  and  collecting  contributions  and  sup- 
"  plies  and  recruiting  men  for  the  Filipino  forces,  and 
"sending  all  obtainable  military  information  to  the 
"  Filipino  leaders. 

"Wherever,  throughout  the  archipelago,  there  is  a 
"  group  of  the  insurgent  army,  it  is  a  fact  beyond 
"dispute  that  all  contiguous  towns  contribute  to  the 
"  maintenance  thereof  In  other  words,  the  towns, 
"regardless  of  the  fact  of  American  occupation  and 
"town  organization,  are  the  actual  bases  for  all  in- 
"surgent  military  activities;  and  not  only  so  in  the 
"sense  of  furnishing  supplies  for  the  so-called  flying 
"  columns  of  guerrillas,  but  as  affording  secure  places 
"  of  refuge.  Indeed,  it  is  now  the  most  important 
"  maxim  of  Filipino  tactics  to  disband  when  closely 
"pressed  and  seek  safety  in  the  nearest  barrio,  a 
"manoeuvre  quickly  accomplished  by  reason  of  the 
"assistance  of  the  people  and  the  ease  with  which 
"the  Filipino  soldier  is  transformed  into  the  appear- 
"ance  of  a  peaceful  native,  as  referred  to  in  a  preced- 
"  ing  paragraph. 

"  The  success  of  this  unique  system  of  war  depends 
"upon  almost  complete  unity  of  action  of  the  entire 
"native  population.  That  such  unity  is  a  fact  is  too 
"obvious  to  admit  of  discussion;   how  it  is  brought 


1 64         LAW  AND  POLICY  OF  ANNEXATION 

'about  and  maintained  is  not  so  plain.  Intimidation 
'  has  undoubtedly  accomplished  much  to  this  end, 
'but  fear  as  the  only  motive  is  hardly  sufficient  to 
'  account  for  the  united  and  apparently  spontaneous 
'  action  of  several  millions  of  people.  One  traitor  in 
'each  town  would  eventually  destroy  such  a  complete 
'organization.  It  is  more  probable  that  the  adhesive 
'principle  comes  from  ethnological  homogeneity, 
'  which  induces  men  to  respond  for  a  time  to  the  ap- 
'  peals  of  consanguineous  leadership,  even  when  such 
'  action  is  opposed  to  their  own  interests  and  convic- 
'tions  of  expediency.  These  remarks  apply  with 
'  equal  force  to  the  entire  archipelago,  excepting  only 
'  that  part  of  Mindanao  occupied  by  Moros,  and  to 
'the  Jolo  group.  There  is  every  reason  to  believe 
'  that  all  of  the  Moros  are  entirely  satisfied  with  ex- 
'  isting  conditions  and  are  anxious  to  maintain 
'them."i 

While  General  MacArthur  indulges  in  hopes  of 
better  things  at  the  beginning  of  this  excerpt  and  in 
other  parts  of  his  report,  he  confirms  the  fact  that,  ex- 
cepting the  Moros,  the  islanders  are  practically  united 
in  opposition  to  American  rule ;  and  the  satisfaction 
of  the  Moros  is  due  to  toleration  for  their  barbarous 
customs,  and  payment  of  blackmail  to  keep  them  from 
piracy. 

Prattle  about  the  eighty-nine  tribes,  the  character 
of  Aguinaldo,  the  absence  of  national  feeling,  the 
yearning  for  American  control,  the  quieting  influence 
of  the  presidential  election,  and  treasonable  sym- 
pathy with  rebellion  no  longer  diverts  us  from  the 

'Report  of  General  MacArthur,  October  i,  1900,  Army 
and  Navy  Journal,  November  10,  1900. 


THE  ALIENATION  OF  THE  PHILIPPINES     165 

fact  that  we  are  forcing  our  sovereignty  upon  the 
whole  PhiHppine  people.  And  we  are  compelled 
to  judge  this  act  of  the  republic  of  to-day  by  the 
principle  on  which  the  republic  was  founded  —  that 
governments  derive  "their  just  powers  from  the  con- 
"sent  of  the  governed."  Petty  criticism  affects  to 
discover  the  abandonment  of  this  principle  in  the 
acquisition  of  Louisiana  and  California  without  con- 
sulting the  handful  of  people  living  in  these  vast  do- 
mains. Disino^enuous  criticism  insinuates  a  violation 
in  the  holding  of  the  Confederate  States  to  their  al- 
legiance. But,  be  it  well  understood,  our  conduct  in 
the  Philippines  involves  a  flagrant  and  unprecedented 
denial  —  not  yet  the  abandonment  —  of  this  vital 
principle  of  the  Declaration  of  Independence ;  and 
this  conduct  is  not  excused  by  the  afterthought  that  it 
may  precede  a  higher  state  of  civilization  in  the  isl- 
ands. Civilization  has  followed  conquest,  and  so  has 
a  new  religion,  but  I  believe  that  enlightened  Mo- 
hammedans now  disavow  the  propaganda  of  the 
sword :  And  they  who  affect  to  view  devastation  in 
the  Philippines  and  the  Transvaal  as  a  preliminary 
step  toward  the  higher  education  of  the  survivors  are 
but  trying  to  divert  attention  from  blunders  that  have 
plunged  the  great  free  states  of  the  world  into  wars 
for  the  subjugation  of  weak  peoples. 

If,  some  day,  the  islanders  shall  be  beaten  into 
subjection,  relief  at  the  establishment  of  order  may 
beget  the  comfortable  reflection  that  "  the  end  has 
"justified  the  means"  —  a  maxim  still  current  among 
the  debased  coin  of  politics.  But,  considering  the 
permanent  welfare  of  the  'republic,  the   Philippines 


1 66         LAW  AND  POLICY  OF  ANNEXATION 

subdued  will  be  quite  as  undesirable  as  the  Philip- 
pines in  revolt.  The  circumstance  of  revolt  merely 
emphasizes  the  radical  antagonism  of  this  annexation, 
both  to  the  true  mission  of  the  United  States  in  the 
world  and  to  their  best  interests  at  home. 

The  victory  over  Spain,  especially  the  dramatic 
entrance  into  Asia  by  way  of  the  Philippines,  is 
made  the  occasion  for  boasting  that  the  United 
States  have  at  last  cast  off  their  "  swaddlinor  clothes  " 
and  taken  their  place  in  the  world  ;  as  if  international 
consequence  of  a  virile  and  admirable  sort  had  not 
been  theirs  from  the  beginning. 

The  importance  of  the  United  States  commenced 
with  their  birth  in  an  age  when  free  institutions  were 
practically  unknown  in  continental  Europe,  and  when 
England  had  almost  forgotten  "  her  precedence  in 
"teaching  nations  how  to  live"  that  Milton  had 
besought  her  never  to  forget ;  and  it  was  not  pure 
coincidence  that  the  establishment  of  our  republic 
was  followed  quickly  by  the  French  Revolution, 
from  which,  through  many  incidents  of  loss  and  gain, 
the  people  of  continental  Europe  derive  most  of  the 
liberties  they  enjoy  to-day.  The  cause  of  freedom, 
encouraged  by  the  founding  of  the  republic,  has 
been  fostered  everywhere  by  its  success,  by  its  open 
sympathy,  by  its  prompt  recognition  of  successful 
rebellion,  and,  in  this  hemisphere  especially,  by  its  ad- 
herence to  the  Monroe  Doctrine.  And  the  United 
States  have  borne  a  notable  part  in  the  unselfish 
activities  of  civilization  ;  in  the  advancement  of  science 
and  the  useful  arts,  in  the  promotion  of  respect  for 


THE  ALIENATION  OF  THE  PHILIPPINES    167 

international  law,  and   in   the   work  of  missions  and 
exploration. 

The  worthiness  of  our  achievements  makes  it  dis- 
creditable to  belittle  them  in  order  to  magnify  the 
events  of  the  late  war  and  the  sufficiently  great  oppor- 
tunities these  have  disclosed.  Far  more  discreditable 
is  the  temptation  to  use  these  opportunities  as  a 
means  of  becoming  what  is  called,  in  the  jargon  of 
politics,  a  "world  power."  To  equip  itself  for  effec- 
tive work  as  one  of  the  "world  powers"  the  republic 
must  adopt  these  policies  and  principles  : 

1.  An  unchanging  foreign  policy  of  territorial 
aggrandizement    as    active    as    opportunity   permits. 

This  is  the  cardinal  policy  of  the  "world  powers." 
It  is  based  upon  the  assumption  that  markets  must  be 
enlarged  abroad  to  prevent  starvation  at  home,  and 
that  the  best  way  to  sell  goods  is  to  own  buyers. 
The  anticipated  consequence  of  the  rule  is  an  appal- 
ling struggle  for  food,  after  which  the  descendants 
of  the  brutalized  survivors  will  grope  their  way  to  a 
new  civilization. 

For  the  United  States,  the  adoption  of  this  policy 
means  the  abandonment  of  temperate  friendliness 
towards  all  nations,  and  the  substitution  of  persis- 
tent hatred  thinly  veiled  now  here,  now  there  by 
vexatious  alliances. 

2.  A  great  and  increasing  display  of  military 
power ;  though  this  is  partly  due  to  dread  of  in- 
vasion, and,  in  some  countries,  of  revolution. 

For  the  United  States  this  means  an  armed  force 
far  beyond  their  proper  needs  in  America,  for  we  do 
not  apprehend  invasion,  and  the  necessity  for  a  great 


1 68        LAW  AND  POLICY  OF  ANNEXATION 

federal  army  as  a  constabulary  force  can  only  arise 
through  a  blind  encouragement  of  conditions  breed- 
ing discontent. 

Probably  it  would  mean  also  a  recasting  of  our 
federal  revenue  system  in  order  to  permit  the  taxa- 
tion of  land  and  incomes,  now  impracticable,  as  we 
have  seen.-^  Our  expenditure  in  peace  on  military 
account,  including  pensions,  has  for  some  time  ex- 
ceeded that  of  any  professedly  militant  state,  and 
this  must  be  largely  increased  if  we  abandon  our 
traditional  policies. 

3.  A  selfishness  passing  the  self-interest  under- 
lying a  sound  national  policy,  and  often  reaching  out 
to  the  denial  of  any  rights  in  weaker  nations.  This 
is  the  mainspring  of  the  policy  of  aggrandizement. 

These  are  some  of  the  policies  of  the  world  powers, 
yet  one  who  condemns  them  is  not  called  upon  to 
impute  injustice  to  all  their  purposes  (Russia,  for  ex- 
ample, must  make  her  way  to  an  open  sea),  or,  in  fine, 
to  unravel  the  mixed  motives  and  the  confused  pro- 
cesses that  have  accompanied  notable  advances  in 
civilization.  But  when  the  best  has  been  said  for 
these  policies,  they  remain  unfit  for  our  adoption ; 
and  if  it  be  argued  that  we  may  keep  the  Philippines 
without  accepting  the  policies,  I  reply  that  by  our  con- 
duct in  the  Philippines  we  have  adopted  some  of  them 
experimentally,  and  must  employ  all  of  them  perma- 
nently and  in  larger  measure  if  we  remain  in  the  isl- 
ands. For  if  we  keep  the  Philippines  we  shall  not 
place  our  Terminus  there.  They  will  be  but  a  stage 
on  a  march  to  the  mainland  of  Asia,  to  be  resumed 
some  day,  notwithstanding  the  rational  ideas  that  at 

1  See  supra,  p.  85. 


THE   ALIENATION  OE  THE  PHILIPPINES    169 

present  commend  to  us  the  preservation  of  the  state 
of  China. 

Withdrawal  from  the  PhiHppines  will  mean  that, 
having  tried  the  policies  of  the  "world  powers"  and 
found  them  wanting,  we  purpose  to  put  our  strength 
to  better  use  than  conquest,  to  affirm  the  hope  of  a 
better  law  for  the  world  than  the  law  of  war,  and  to 
invigorate  this  hope  in  all  nations  by  the  example 
of  our  own.  And  our  action  will  restore  to  our 
primacy  in  America  the  moral  weight  it  has  lost 
through  aggrandizement  in  Asia,  for  the  Monroe 
Doctrine,  in  which  we  demand  the  exemption  of  the 
Western  hemisphere  from  foreign  conquest,  has  been 
more  conscientiously  maintained  at  home  and  more 
respected  abroad  because  of  our  traditional  policy  of 
abstaining  from  conquest  in  the  Eastern. 

Withdrawal  from  the  Philippines  will  reestablish 
the  truth  that  the  strength  of  our  republic  is  not 
maintained  by  mere  enlargement  of  boundaries,  nor 
by  mere  addition  of  peoples:  It  is  founded  upon  the 
competency  and  loyalty  of  the  civic  body,  and  upon 
the  "indestructible  union  of  indestructible  States," 


OBSERVATIONS  ON  THE 
STATUS  OF  CUBA 


OBSERVATIONS  ON  THE 
STATUS  OF  CUBA 

The  status  of  Cuba  since  the  ratification  of  the 
Treaty  of  Paris  is  anomalous.  Viewed  as  a  whole 
it  might  be  called  unique,  could  this  distinction  be 
safely  applied  to  any  political  condition. 

I 

The  first  paragraph  of  the  First  Article  of  the 
Treaty  of  Paris  reads:  "Spain  relinquishes  all  claim 
"  of  sovereignty  over  and  title  to  Cuba."  Here  is  a 
parting  with  territory  by  Spain,  yet  there  is  no  ces- 
sion, nor  even  a  surrender  in  the  sense  of  a  trans- 
fer. At  the  end  of  the  peace  negotiations  Spain  did 
what  at  their  commencement  she  protested  could 
not  be  done;  she  abandoned  Cuba,  after  vainly 
striving  to  induce  the  United  States  to  accept  it 
from  her  hands.  Yet  the  island,  though  abandoned, 
did  not  become  a  derelict,  being  straightway  occu- 
pied, although  not  annexed,  by  the  United  States. 

In  these  circumstances  Cuba  remains  as  foreiofn 
to  our  domestic  system  as  it  was  when  under  the 
dominion  of  Spain.  It  is  not  within  the  purview  of 
the  Constitution,  nor  of  any  law  of  the  United  States ; 
nor  within  the  territorial  jurisdiction  of  Congress,  for 
this  is  the  legislature  of  the  United  States,  and  not  of 

This  paper  is  reprinted,  somewhat  revised,  from  Yale  Law  Journal, 
June,  1900,  with  the  permission  of  the  editors. 

173 


174        LAW  AND  POLICY  OF  ANNEXATION 

any  other  country.  This  Hmitation  of  congressional 
power  is  prescribed  by  the  rule  that  the  acts  of  a 
legislature  have  no  force  in  foreign  territory,  except, 
of  course,  as  they  may  be  held  to  affect  citizens 
abroad.  This  rule  is  sometimes  stated  in  terms 
recognizing  the  inability  of  one  state  to  depreciate 
the  sovereignty  of  another  by  asserting  jurisdiction 
in  the  latter's  territory,  and  were  this  the  whole 
reason  for  the  rule  there  might  be  difficulty  in  apply- 
ing it  to  Cuba,  where  there  is  no  sovereignty  to  be 
depreciated.  But  the  sufficient  reason  for  the  rule 
is  that  a  legislature  is  without  territorial  jurisdiction 
beyond  the  limits  of  the  country  in  which  it  is 
sovereign.^ 

The  second  paragraph  of  the  First  Article  of  the 
Treaty  of  Paris  reads :  "  And  as  the  island  is,  upon 
"its  evacuation  by  Spain,  to  be  occupied  by  the 
"  United  States,  the  United  States  will,  so  long  as 
"  such  occupation  shall  last,  assume  and  discharge 
"the  obligations  that  may,  under  international  law, 
"result  from  the  fact  of  its  occupation,  for  the  pro- 
"tection  of  life  and  property." 

In  considering  the  nature  and  effect  of  this  occu- 
pation from  the  standpoints  of  the  different  parties 
interested  in  Cuba  we  shall  gain  an  approximate 
idea  of  the  status  of  the  island. 

II 

From  the  standpoint  of  the  United  States  Cuba 
is  a  foreign  country  in  our  occupation  and  control. 
The  occupation   is  not  beneficial  to  us,  as  it  would 

■  See  supra,  p.  24. 


THE   STATUS   OF  CUBA  175 

be,  presumably,  had  we  annexed  the  island.  In  fact, 
it  is  decidedly  burdensome,  a  vexatious  result  of  a 
costly  war  waged  for  the  avowed  purpose  of  freeing 
Cuba  from  Spain  in  order  to  turn  it  over  to  its  own 
people.  However  this  fact  may  be  esteemed  in 
foreign  chancelleries,  or  in  Cuba  itself,  it  entitles  the 
United  States  to  assert,  upon  occasion,  any  right, 
privilege,  or  immunity  that  enures  to  a  disinterested 
occupant  of  territory  as  distinguished  from  a  sov- 
ereign proprietor,  and  leaves  them  responsible  only 
for  the  discharge  of  the  specific  obligations  of  the 
Treaty  of  Paris,  and  such  duties,  sufficiently  oner- 
ous, as  may  be  attached  by  international  law  to  an 
occupation  of  this  peculiar  kind. 

Our  control  over  Cuba  savors  of  the  protectoral 
relation  in  many  respects,  yet  it  is  not  a  formal  pro- 
tectorate, because,  apart  from  uncivilized  regions,  the 
subject  of  this  relation  is  a  state  of  more  or  less  sub- 
stantial powers. 

There  is  no  sovereigfn  state  of  Cuba,  and  we  shall 
only  add  to  the  embarrassments  of  a  sufficiently 
difficult  problem  by  relying  upon  such  fictions  as  an 
embryo  state,  or  an  effective  sovereignty  in  the  Cuban 
people.  It  is  true  that  municipal  and  provincial 
systems  of  government  are  in  operation  in  the 
island,  and  a  complete  judicial  system,  all  officered  by 
Cubans,  but  these  agencies  do  not  emanate  from  a 
local  sovereignty ;  they  exist  by  the  ordination  or 
permission  of  the  United  States.  To  be  short,  what- 
ever real  sovereignty  there  is  in  Cuba  to-day  is 
vested  in  the  representatives  of  the  United  States 
who  administer  the  government  of  Cuba.     Cuba  can 


176         LAW  AND  POLICY  OF  ANNEXATION 

be  called  a  "  state  "  only  as  the  term  may  be  used  to 
dignify  a  community  having  a  certain  standing  of  its 
own,  yet  lacking  even  the  trappings  of  sovereignty.^ 

The  government  of  Cuba  is,  really,  the  President 
of  the  United  States,  the  island  being  ruled  by  his 
subordinates  who  execute  his  orders,  or  their  own, 
which  he  adopts  if  he  does  not  revoke.  It  cannot  be 
said  that  this  government  is  independent,  organically, 
of  the  United  States,  for  the  President  enjoys  his 
powers  by  virtue  of  his  office,  and  in  no  respect, 
either  within  or  without  the  United  States,  is  that 
office  separable  from  the  Federal  Government  of 
which  it  is  a  coordinate  branch.  The  government 
of  Cuba  is  rooted  in  Washington,  not  in  Havana. 
It  is  an  offshoot  of  the  executive  department  of  the 
United  States,  projected  into  and  holding  its  place 
in  a  foreign  territory  with  the  assent  of  Congress. 
Hence,  although  the  island  of  Cuba  is  not  within  the 
jurisdiction  of  Congress,  the  government  of  Cuba  is 
subject  to  certain  powers  which  the  federal  legislature 
is  authorized  to  exert  in  regard  to  the  executive 
department. 

Whether  Congress  is  competent  to  order  this  gov- 
ernment to  pass  specific  laws  for  the  island,  and  thus 
legislate  effectively  for  it  through  the  medium  of 
the  executive  department  without  bringing  it,  tech- 
nically, within  congressional  jurisdiction,  I  do  not 
discuss.  The  impropriety  of  this  action  should  be 
a  sufficient  reason  for  avoiding  it. 

Our  control  over  Cuba  may  be  called  "military" 
in  view  of  its  origin,    the   agencies  by   which   it  is 

1  See  supra,  p.  39. 


THE  STATUS   OF  CUBA  i77 

chiefly  managed,  and  its  freedom  from  the  restraints 
of  municipal  law,  yet  it  is  not  properly  identified 
with  a  military  occupation  of  conquered  territory  con- 
templated by  the  laws  of  war.  Our  control  should 
be,  as  it  is,  exerted  less  rigorously  than  a  "  military 
occupation,"  and  in  thus  differentiating  it  I  rely  upon 
the  persuasive  ethics  of  international  law  which  dis- 
courage the  application  of  the  law  of  belligerent 
right  to  a  peaceful  country.  And  Cuba  is  at  peace, 
though  prudence  may  forbid  at  present  the  with- 
drawal of  our  forces,  and,  if  need  be,  the  government 
is  competent  to  exercise  full  military  powers  in  the 
face  of  insurrection.  I  say  "insurrection"  advisedly, 
because  at  the  moment  our  government  was  estab- 
lished in  Cuba  it  rightfully  demanded  the  obedience 
of  the  people. 

While  our  control  is  less  onerous  than  an  ordinary 
military  occupation  its  activities  are  more  varied,  and 
its  responsibilities  are  heavier. 

The  conqueror's  strict  duty  to  the  inhabitants  of 
the  territory  is  performed  when  he  affords  them  such 
liberty  of  action  and  protection  as  the  exigencies  of 
honorable  warfare  permit.  Our  duty  in  Cuba  is  to 
guide  a  friendly  country  to  promised  independence. 

The  fourth  clause  of  the  Joint  Resolution  of  Con- 
gress, April  20,  1898,  reads:  "The  United  States 
"hereby  disclaims  any  disposition  or  intention  to  ex- 
"  ercise  sovereignty,  jurisdiction  or  control  over  said 
"  island  except  for  the  pacification  thereof,  and  as- 
"serts  its  determination  when  that  is  accomplished  to 
"  leave  the  government  and  control  of  the  island  to  its 
"  people";  and  this  was  incorporated  in  the  ultimatum 
12 


1 78         LAW  AND  POLICY  OF  ANNEXATION 

forwarded  to  Spain.  "  Pacification "  is  the  master 
word  of  the  first  part  of  the  clause,  and  did  this  ex- 
press a  self-imposed  law,  we  have  broken  it,  for  after 
stretching  the  word  to  the  uttermost,  many  of  our  acts 
in  Cuba  are  hopelessly  beyond  its  meaning.  For 
example,  the  pacification  of  Cuba  is  not  promoted  by 
orders  regulating  the  sponge  fishery,^  and  prescribing 
that  civil  marriages  only  shall  be  legally  valid. ^  The 
truth  is  "  pacification  "  did  not  prefigure  the  broad  re- 
sponsibilities and  the  sequent  powers  of  the  United 
States  in  taking  charge  of  Cuba,  and  so  far  from 
breaking  faith  by  assuming,  temporarily,  complete 
control,  they  have  performed  a  function  justified  by 
circumstances,  though  sometimes,  as  in  the  marriage 
law,  they  have  abused  their  power. 

The  government  of  Cuba  is  not  bound  by  any  law 
of  the  United  States  in  its  dealings  with  the  people, 
nor  by  any  law  of  the  old  regime  which  it  may 
choose  to  alter  or  repeal.  Yet,  although  it  is  not  re- 
strained by  a  municipal  constitution  of  which  the 
governed  may  take  advantage,  I  should  hesitate  to 
define  this  government  as  despotic  in  theory,  not 
merely  for  sentimental  reasons,  but  rather  because  it 
is  required  by  principle  as  well  as  by  treaty  to  respect 
the  dictates  of  international  law. 

This  government,  however  defined,  is  charged  with 
the  duty  of  administering  Cuba  and  abating  some 
grosser  evils  of  the  Spanish  regime :  and  perhaps 
there  is  a  field  for  remedial  action  beyond  these  im- 
perative duties.  But  zeal  for  reform,  a  preference 
for  the  American  way,  which  we  understand,  over  the 
Spanish  way,  which  we  do  not  understand,  do  not 
'  General  Brooke's  Civil  Report,  I,  109.  2  jj^  ^^^ 


THE  STATUS   OF  CUBA  179 

justify  disturbances  of  fundamental  law  and  inveterate 
custom  unbecoming"  the  office  of  a  provisional  ruler. 

Our  occupation  is  terminable  at  our  discretion ; 
and  within  our  power  is  the  method  of  ending  it, 
though  the  way  of  abandonment  is  practically  out  of 
the  question. 

The  United  States  may  end  the  present  occupa- 
tion by  changing  its  character  to  sovereign  proprie- 
torship—  by  annexing  the  island.  This  can  be 
accomplished  by  Congress  only ;  the  treaty-making 
body,  which  usually  enlarges  the  United  States, 
being  without  jurisdiction  in  this  case,  because  there 
is  no  local  government  competent  to  make  a  cession. 

Annexation  by  formal  act  would  be  the  orderly 
course,  but  might  not  the  same  result  be  reached  by 
Congress  legislating  for  the  island  ?  We  are  so 
accustomed  to  enlarge  our  dominion  by  formal  con- 
sent of  the  titular  sovereign  of  the  desired  territory 
that  we  are  apt  to  lose  sight  of  the  truth  that  land 
may  be  annexed  as  well  by  occupation,  followed  by 
the  actual  assumption  of  jurisdiction  by  the  President 
and  Congress.  ''Who  is  the  sovereign,  de  jure  or  de 
"■facto,  of  a  territory,"  says  the  Supreme  Court,  "is  not 
"a  judicial  but  a  political  question,  the  determination 
"of  which  by  the  legislative  and  executive  depart- 
"  ments  of  any  government  conclusively  binds  the 
"judges,  as  well  as  all  other  officers,  citizens,  and 
"subjects  of  that  government.  This  principle  has 
"always  been  upheld  by  this  Court,  and  has  been 
"affirmed  under  a  great  variety  of  circumstances."^ 
And  Chief  Justice  Marshall  said:  "  If  those  depart- 
1  Jones  V.  U.  S.,  131  U.  S.  202,  212. 


i8o        LAW  AND  POLICY  OF  ANNEXATION 

'ments  which  are  intrusted  with  the  foreign  inter- 
'  course  of  the  nation,  which  assert  and  maintain  its 
'  interests  against  foreign  powers,  have  unequivo- 
'  cally  asserted  its  rights  of  dominion  over  a  country 
'  of  which  it  is  in  possession,  and  which  it  claims 
'  under  a  treaty,  if  the  legislature  has  acted  on  the 
'construction  thus  asserted,  it  is  not  in  its  own 
'  courts  that  this  construction  is  to  be  denied.  A 
'  question  like  this  respecting  the  boundaries  of 
'  nations  is,  as  has  been  truly  said,  more  a  political 
'  than  a  legal  question,  and  in  its  discussion  the 
'courts  of  every  country  must  respect  the  pro- 
'  nounced  will  of  the  legislature."  ^ 

The  principle  of  Marshall's  opinion  covers  a 
broader  field  than  the  disputed  boundaries  of  land 
ceded  by  treaty,  which  was  the  case  in  Foster  v. 
Neilson.  If  the  army  of  the  United  States  seizes 
foreign  land ;  if  a  treaty  of  peace  does  not  mention 
hostile  territory  then  occupied  by  our  forces,  thereby 
recognizing  our  possession  by  the  operation  of  the 
principle  o{  iiti  possidetis  ;  if  American  officers  take 
possession  of  unoccupied  land  in  the  name  of  the 
republic.  Congress,  by  legislating  for  these  terri- 
tories, may  effect  their  incorporation  in  the  United 
States.  Now  Congress  is  at  present  without  juris- 
diction in  Cuba,  but  the  island  is  in  possession  of  our 
forces.  If,  then.  Congress  shall  choose  to  make 
laws  for  Cuba,  the  legislative  and  executive  depart- 
ments of  our  government  will  have  asserted  the 
perfect  sovereignty  of  the   United  States,   and    the 

'  Foster  v.  Neilson,  2  Peters  253,  309;  cited  in  U.  S.  v.  Lynde, 

II  Wallace  632,  638. 


THE   STATUS   OF  CUBA  i8i 

courts  will  follow  their  lead,   provided  the  assertion 
be  unequivocal. 

Of  course  our  courts  would  not  recognize  a  statute 
of  doubtful  range  as  extending  to  Cuba.  They 
would  endeavor  to  construe  a  statute  evidently- 
intended  to  be  operative  in  the  island  as  an  exertion 
of  exterritorial  power  over  our  citizens  abroad,  and 
not  a  law  of  the  place ;  and,  though  this  suggests  a 
most  delicate  question,  it  is  possible  that  a  statute 
plainly  directed  to  Cuba  might  be  so  trivial  in  itself,  or 
so  markedly  at  variance  with  the  pronounced  attitude 
of  Congress,  that  the  court  would  properly  treat  it  as 
tiltra  vires,  rather  than  infer  the  tremendous  conse- 
quence of  an  enlargement  of  the  United  States 
from  such  doubtful  evidence  of  intention. 

The  method  by  which  the  United  States  are 
pledged  to  end  their  occupation  of  Cuba  is  to  recog- 
nize a  Cuban  state.  It  is  predicted  that  the  pledge 
will  be  broken,  or  falsely  kept  by  setting  up  a  toy 
state  that  will  formally  cede  the  island  to  us.  Of 
these  political  forecasts  I  have  only  to  say,  at  pres- 
ent, that  I  have  yet  to  see  the  reason  why  the 
pledge  should  not  be  kept,  and  I  refuse  to  believe 
that  the  United  States  will  play  an  hypocritical  trick 
to  gain  an  end  which,  if  improper,  should  not  be 
pursued,  and,  if  proper,  should  be  gained  by  the 
straightforward  method  of  annexation  by  act  of 
Congress. 

Ill 

From    the    Cuban    standpoint    the    island  is   in  a 
singular  position.     Severed  from  Spain;   not  joined 


i82         LAW  AND  POLICY  OF  ANNEXATION 

to  the  United  States  ;  not  the  territory  of  a  Cuban 
state,  Cuba  is,  in  some  sense,  merely  a  region  admin- 
istered by  a  foreign  master. 

Yet  although  the  island  is  not  the  seat  of  a  sovereign 
state  it  possesses  a  marked  characteristic  of  an  organ- 
ized society  —  a  body  of  law.  Spanish  in  origin,  yet 
retaining  its  vitality  after  the  withdrawal  of  Spain  ; 
alterable  by  the  government  we  have  established, 
yet  never  becoming  United  States  law,  this  body  is 
the  law  of  the  place,  and  the  fact  of  its  existence 
makes  Cuba  to  some  extent  a  political  entity.  To 
this  law  of  the  place,  both  civil  and  criminal,  all  per- 
sons in  Cuba  are  amenable,  including  all  foreigners 
except  those  whose  connection  with  our  army  may 
warrant  their  subjection  to  the  military  laws  of  the 
United  States. 

What  is  the  status  of  the  people  of  Cuba,  including 
in  this  class  the  Peninsular  subjects  of  Spain  who 
have  not  elected  to  retain  Spanish  citizenship  in 
conformity  with  the  provision  of  the  Treaty  of 
Paris? 

On  April  20,  1898,  Congress  resolved  "That  the 
"people  of  Cuba  are,  and  of  right  ought  to  be, 
"  free  and  independent."  In  point  of  law,  this  resolu- 
tion had  no  more  effect  in  Cuba  than  a  resolution 
"That  the  Sultan  of  Morocco  has  and  ousfht  to  have 
"but  one  wife"  would  have  in  his  palace.  In  point 
of  fact,  the  resolution,  so  far  as  it  dealt  with  the  ex- 
isting order  of  things,  did  not  express  a  truth  at  the 
date  of  its  passage  —  indeed,  in  the  same  breath  Con- 
gress practically  resolved  to  go  to  war  with  Spain  be- 
cause the   Cubans  were   not   free  and  independent. 


THE   STATUS   OF  CUBA  183 

Nor  are  they  free  and  independent  to-day,  except  as 
they  are  released  from  the  power  of  Spain. 

The  Cubans  are  no  longer  subjects  of  Spain.  Di- 
vested of  Spanish  nationality,  by  their  own  consent 
in  the  case  of  Peninsulars  who  have  cast  their  lot 
with  Cuba,  by  the  act  of  Spain  in  the  case  of  Cuban - 
born  subjects  who  were  not  given  a  right  of  election, 
they  can  be  reintegrated  only  by  complying  with  the 
provisions  of  Spanish  law.  The  situation  of  men 
of  Cuban  birth  who  prefer  Spanish  citizenship  is, 
indeed,  a  hard  one,  yet  they  cannot  question  the 
legality  of  the  rupture  of  the  old  allegiance,  for  with 
the  right  of  a  sovereign  to  cede  territory  is  coupled 
the  right  to  disavow  further  responsibility  for  its 
inhabitants. 

The  Cubans  are  not,  of  course,  citizens  of  the 
United  States ;  nor  are  they  technically  our  subjects, 
though  if  they  owe  a  qualified  allegiance  to  any 
political  head  it  is  to  the  government  we  have  set 
over  them.  They  have  been  called  "citizens  of 
"Cuba,"  and  so  long  as  we  understand  their  citizen- 
ship to  be  of  that  imperfect  kind  that  does  not  involve 
membership  in  the  community  we  call  a  sovereign 
state,  we  may  accept  this  classification,  which  seems 
to  be  approved  by  the  Treaty  of  Paris.  The  Ninth 
Article  declares  that  if  the  Peninsular  subjects  of 
Spain  residing  in  ceded  or  relinquished  territories 
shall  not  within  a  certain  time  declare  an  intention  to 
retain  their  allegiance,  "  they  shall  be  held  to  have  re- 
"  nounced  it,  and  to  have  adopted  the  nationality  of  the 
"  territory  in  which  they  may  reside."  "  Nationality  " 
is  evidently  used  in  a  political  sense,  and  in  order  to 
give  effect  to  this  meaning  in  Porto  Rico  and  the 


1 84        LAW  AND  POLICY  OF  ANNEXATION 

Philippines  we  must  assume  that  the  persons  men- 
tioned adopt  the  nationality  of  the  United  States, 
because,  as  the  United  States  have  annexed  these 
islands,  it  would  be  as  absurd  to  speak  of  Porto 
Rican  or  Philippine  nationality  as  of  Alaskan  or  New 
Mexican  nationality.^  But  as  the  United  States 
have  not  annexed  Cuba,  we  can  give  effect  to  the 
provision  in  its  regard  only  by  accepting  the  theory 
of  a  Cuban  nationality  for  what  it  is  worth. 

A  familiar  principle  of  public  law  is  that  a  radi- 
cal change  of  government,  however  it  may  alter  the 
public  order  of  things,  shall,  of  itself,  affect  private 
relations  and  rights  as  little  as  possible. 

The  application  of  this  principle  to  the  domestic 
affairs  of  Cuba  does  not  call  for  special  consideration. 
It  is  sufficient  to  observe  that  rights  vested  under 
the  old  laws  are  not  abrogated ;  that  the  old  laws 
themselves  endure  except  as  they  may  be  altered  by 
the  provisional  government ;  and  that  the  people 
must  receive  from  this  government  protection  to 
person  and  property.  Beyond  these  domestic  affairs 
there  are  interests  growing  out  of  the  intercourse 
between  Cuba  and  the  world  at  large,  and  to  these 
the  principle  should  be  applied  wherever  practicable. 

Cuba  is  still  within  the  domain  of  private  interna- 
tional law,  and  I  assume  that  the  courts  of  foreign 
nations,  including,  of  course,  our  own,  will  generally 
continue  to  apply  their  rules  in  international  con- 
troversies, involving  contracts,  wills,  marriages,  and 
the  like,  as  though  the  island  had  not  undergone  a 
political  change. 

iSee  si/fra,  p.  20. 


THE   STATUS   OF  CUBA  185 

Whether  a  foreigner  may  sue  a  person  in  the 
courts  of  the  latter's  country  depends  upon  the  local 
law,  and  it  will  be  assumed  that  foreign  tribunals, 
heretofore  open  to  Cuban  subjects  of  Spain,  will  not 
be  closed  to  Cuban  proteges  of  the  United  States. 
It  is  especially  important  that  Cubans  shall  not  lose 
any  privileges  in  American  courts  because  the  United 
States  have  placed  them  in  an  anomalous  position, 
and  where  proof  of  alienage  is  sufficient  to  confer 
jurisdiction  there  will  be  no  question  as  to  the  pro- 
priety of  entertaining  their  suits,  for  unquestionably 
they  are  aliens.  Because  the  right  to  sue  is  ac- 
corded by  the  Constitution  of  the  United  States  "to 
"citizens  or  subjects  of  a  foreign  state,"  an  effort  has 
been  made  to  bar  Cubans  from  the  federal  courts ; 
but  Judge  Lacombe  has  decided  in  their  favor, 
saying  of  the  defendant's  contention  :  "  There  is 
"certainly  nothing  in  all  this  which  lends  any  color 
"to  the  proposition  that  the  plaintiff  is  not  a  foreign 
"citizen.  Even  the  brief  memorandum  of  opinion  in 
"Stuart  V.  City  of  Easton,^  gives  no  support  to 
"demurrant's  contention.  One  may  be  puzzled  to 
"determine  upon  what  theory  it  was  held  in  that 
"case  that  a  'citizen  of  London,  England,'  is  not 
"  a  '  foreign  citizen  ' ;  but  assuming,  as  suggested, 
"that  it  is  because  London  is  not  a  free  and  indepen- 
"  dent  community,  but  owes  allegiance  to  the  British 
"  Crown,  the  decision  has  no  application  to  the  case 
"at  bar,  since  the  political  branch  of  this  govern- 
"  ment  has  found  as  a  political  fact  that  the  people  of 
"the  island  of  Cuba  are  'free  and  independent.'"^ 

^  156  U.  S.  46.         2  Betancourt  v.  Mutual  Reserve   Fund   Life 
Association,   loi   Federal  Rep.  305. 


1 86        LAW  AND  POLICY  OF  ANNEXATION 

May  not  Judge  Lacombe's  conclusion  be  upheld 
without  lending  judicial  sanction  to  the  fiction  of 
Cuban  independence  ?  Even  if  we  attribute  to 
Cubans  a  sort  of  citizenship  they  are  neither  citizens 
nor  subjects  of  a  "  foreign  state,"  for  there  is  no 
"state"  of  Cuba.  As  the  letter  of  the  Consti- 
tution must  be  somewhat  overtaxed  in  order  to 
cover  the  case  of  Cuba,  why  should  not  the  provision 
be  interpreted,  as  a  whole,  in  the  broad  spirit  which 
animates  it,  and  our  courts  be  declared  open  to 
persons  who  show  that  they  are  not  citizens  of  the 
United  States? 

Besides  international  controversies  determinable  in 
the  courts,  there  are  private  interests  recognized  by 
the  law  and  custom  of  nations  as  being  the  proper 
subjects  of  diplomatic  assistance  or  negotiation,  and 
for  which  individuals  may  request  the  good  offices 
of  their  government.  Regarding  the  common  pro- 
tection and  privileges  to  which  persons  in  foreign 
countries  are  entitled  by  international  law,  the  diplo- 
matic and  consular  offices  of  the  United  States  should 
be  exerted  in  behalf  of  Cubans  as  nearly  to  the 
extent  of  their  exertion  for  our  own  citizens  as  the 
rules  of  foreign  governments  and  our  own  permit. 

Generally  speaking,  our  concern  for  Cubans 
abroad  cannot  be  properly  questioned  by  a  foreign 
government,  for  these  reasons  :  Because  the  relation 
between  a  state  and  a  person  for  whom  it  claims 
protection  is  no  concern  of  a  foreign  state  unless  it 
claims  him  as  its  own  citizen,  and  we  shall  not  meet 
this  embarrassment,  since  Spain  has  completely 
denationalized    her   Cuban  subjects:    Because  since 


THE   STATUS   OF  CUBA  187 

foreign  governments  are  entitled,  as  we  shall  see,  to 
view  the  United  States  as  the  protector  of  the  inter- 
ests of  their  subjects  in  the  island,  they  will  not 
disavow  the  reciprocal  duty  of  safeguarding  Cuban 
interests  in  their  own  dominions. 

The  fact  that  Cubans  cannot  receive  United  States 
passports,  which  are  issuable  to  citizens  only,  is  not 
especially  detrimental.  The  State  Department  has 
approved  the  issuance  of  the  following  consular  cer- 
tificate to  an  American  Indian  :  "  The  bearer  of  this 
"  document  is  a  North  American  Indian  whose  name 
"is  Hampa.  This  Indian  is  a  ward  of  the  United 
"States,  and  is  entitled  to  the  protection  of  its  con- 
"sular  and  other  officials.  He  is  not,  however,  en- 
"  titled  to  a  passport,  as  he  is  not  a  citizen  of  the 
"  United  States.  This  consulate  has  the  honor  to 
"request  the  Russian  authorities  to  grant  Hampa  all 
"  necessary  protection  during  his  stay  in  Russia,  and 
"grant  him  permission  to  depart  when  he  requires 
"it."^  The  State  Department  may  issue  suitable 
certificates  to  Cubans, —  probably  it  has  done  so 
already, —  and  these  will  be  honored  abroad  as  our 
Indian  certificate  seems  to  have  been,  and  as  the  pass- 
ports issued  by  Great  Britain  to  persons  not  her 
citizens,  but  within  her  protection,  are  honored.^ 

Whatever  rights  under  Spanish  treaties  Cubans 
may  have  enjoyed  abroad  as  Spanish  subjects  have 
been  lost  by  the  severance  of  Cuba  from  Spain. 
Whatever  rights  may  be  secured  to  them  by  the 
Treaty  of  Paris  are  enforceable  by  the  United  States, 
at  least  during  the  term  of  their  control.     Whether 

^  Hunt,  The  American  Passport,  p.  147. 
2  See  Lee-Warner,  The  Protected  Princes  of  India,  225. 


1 88         LAW  AND  POLICY  OF  ANNEXATION 

the  United  States  shall  be  disposed  to  request  and  be 
able  to  secure  for  Cubans  the  benefit  of  treaty  rights 
in  foreign  lands  enjoyed  by  their  own  citizens  de- 
pends upon  the  nature  of  the  particular  right  in  ques- 
tion. There  is  no  doubt  that  the  benefit  of  our  con- 
sular jurisdiction  in  non-Christian  countries  should  be 
claimed  for  Cubans ;  on  the  other  hand,  it  would  be 
absurd  for  the  United  States  to  demand  for  them  the 
fishing  rights  on  the  northeast  coast  secured  to  the 
people  or  citizens  of  the  United  States  by  treaty  with 
Great  Britain. 

IV 

The  distinction  between  Cuba  and  the  United 
States,  which  we  maintain  as  a  matter  of  domestic 
law  and  policy,  is  not  altogether  effective  from  the 
standpoint  of  foreign  nations. 

When  a  region  is  occupied  by  a  foreign  state,  other 
states  are  not  necessarily  affected  by  the  motive  of 
the  occupation,  so  far  as  their  current  intercourse  is 
concerned,  and,  in  their  reasonable  demand  for  a 
visible  and  responsible  head  to  a  country  with  which 
they  deal,  are  entitled  to  treat  the  occupant  as  the 
sovereign  for  certain  purposes.  And  it  is  the  interest 
as  well  as  the  duty  of  the  occupant  to  accept  the 
proper  responsibilities  of  the  position,  because  if 
these  be  disavowed  the  country  is,  practically,  with- 
out a  government,  and  in  this  event  a  foreign  state, 
being  unable  to  protect  its  lawful  interests  by  negotia- 
tion, may  employ  adequate  force. 

From  the  standpoint  of  foreign  nations  Cuba  is  in 
some  sense  part  of  the  United  States,  and  the  United 
States  accept  this  conclusion  of  international  law. 


THE   STATUS   OF  CUBA  189 

According  to  the  First  Article  of  the  Treaty  of 
Paris,  already  cited,  "the  United  States  will,  so  long 
"  as  such  occupation  shall  last,  assume  and  discharge 
"  the  obligations  that  may,  under  international  law, 
"  result  from  the  fact  of  its  occupation  for  the  pro- 
"  taction  of  life  and  property."  While  this  clause  is 
part  of  a  treaty  with  Spain,  and  does  not  import  an 
agreement  with  any  other  nation,  it  is  really  but  the 
acknowledgment  of  an  independent  obligation  to  all 
nations.  And  it  may  prove  to  be  an  inadequate 
acknowledgment,  for  if,  perchance,  there  be  any 
international  duty  not  included  in  "  the  protection  of 
"life  and  property,"  the  United  States  cannot  honor- 
ably avoid  the  consequences  of  a  breach  of  it  by 
referring  to  the  treaty  as  the  measure  of  their 
responsibility. 

In  considering  our  duties  to  foreign  nations  in 
regard  to  Cuba  we  must  first  differentiate  Spain 
from  the  generality  in  regard  to  the  special  agree- 
ments made  with  her  in  the  Treaty  of  Paris.  Apart 
from  the  special  law  of  this  treaty,  by  which  Spain 
is  particularly  bound  and  benefited,  she  stands  with 
the  other  nations  in  respect  of  international  rights  and 
obligations. 

The  responsibilities  in  regard  to  foreign  states  cast 
upon  an  occupant  of  hostile  territory  during  war, 
when  inevitable  disorder  may  excuse  unavoidable  de- 
faults, and  when  the  absent  sovereign  has  still  a  legal 
title  to  the  country,  and  may  regain  possession  by 
reconquest  or  treaty,  are  broader  and  heavier  in  Cuba, 
where  order  reigns,  and  whence  the  former  sovereign 


190         LAW  AND  POLICY  OF  ANNEXATION 

has  departed,  never  to  return,  leaving  the  represen- 
tatives of  the  United  States  in  occupation. 

Without  attempting  to  forecast  the  possible  re- 
clamations that  may  be  made  against  the  United 
States  on  Cuban  account,  it  must  be  understood  by 
the  Cubans  that  should  the  United  States  become 
liable  for  a  pecuniary  indemnity  they  will  place  the 
real  burden  where  it  belongs.  If  the  injury  be 
caused  by  the  unlawful  act  or  omission  of  United 
States  citizens,  the  indemnity  should  be  charged 
upon  the  Federal  Treasury.  On  the  other  hand,  an 
indemnity  due  on  account  of  the  acts  of  Cubans 
should  be  charged  to  Cuba,  and  paid  either  out  of 
insular  revenues,  or  by  Cuban  obligations  which  the 
United  States  should  guarantee  to  the  creditor  and 
enforce  against  the  debtor. 


APPENDIX 


(A) 


JOINT   RESOLUTION    IN    REGARD   TO    CUBA 

(30  U.  S.  Statutes  at  Large  738) 

Whereas  The  abhorrent  conditions  which  have  existed  for  more 
than  three  years  in  the  island  of  Cuba,  so  near  our  own  borders, 
have  shocked  the  moral  sense  of  the  people  of  the  United  States, 
have  been  a  disgrace  to  Christian  civilization,  culminating,  as  they 
have,  in  the  destruction  of  a  United  States  battle-ship,  with  two 
hundred  and  sixty-six  of  its  officers  and  crew,  while  on  a  friendly  visit 
in  the  harbor  of  Havana,  and  cannot  longer  be  endured,  as  has 
been  set  forth  by  the  President  of  the  United  States  in  his  message 
to  Congress  of  April  eleventh,  eighteen  hundred  and  ninety-eight, 
upon  which  the  action  of  Congress  was  invited :  Therefore, 

Resolved  by  the  Senate  and  House  of  Representatives  of  the  United 
States  of  America  in  Congress  assembled, 

First.  That  the  people  of  the  island  of  Cuba  are,  and  of  right 
ought  to  be,  free  and  independent. 

Second.  That  it  is  the  duty  of  the  United  States  to  demand, 
and  the  Government  of  the  United  States  does  hereby  demand, 
that  the  Government  of  Spain  at  once  relinquish  its  authority  and 
government  in  the  island  of  Cuba  and  withdraw  its  land  and  naval 
forces  from  Cuba  and  Cuban  waters. 

Third.  That  the  President  of  the  United  States  be,  and  he 
hereby  is,  directed  and  empowered  to  use  the  entire  land  and  naval 
forces  of  the  United  States,  and  to  call  into  the  actual  service  of 
the  United  States  the  militia  of  the  several  States,  to  such  an  ex- 
tent as  may  be  necessary  to  carry  these  resolutions  into  effect. 

Fourth.  That  the  United  States  hereby  disclaims  any  dispo- 
sition or  intention  to  exercise  sovereignty,  jurisdiction,  or  control 
over  said  Island  except  for  the  pacification  thereof,  and  asserts  its 
determination,  when  that  is  accomplished,  to  leave  the  government 
and  control  of  the  Island  to  its  people. 

Approved  April  20,  1898, 

13  193 


194         J^AIV  AND  POLICY  OF  ANNEXATION 

DECLARATION    OF    WAR 

(30  U.  S.  Statutes  at  Large  364) 

Bt  it  enacted  by  the  Senate  and  House  of  Representatives  of  the 
United  States  of  Ajnerica  in  Congress  as  se  tub  led, 

First.  That  war  be,  and  the  same  is  hereby,  declared  to  exist,  and 
that  war  has  existed  since  the  twenty-first  day  of  April,  anno  Domini 
eighteen  hundred  and  ninety-eight,  including  said  day,  between  the 
United  States  of  America  and  the  Kingdom  of  Spain. 

Second.  That  the  President  of  the  United  States  be,  and  he 
hereby  is,  directed  and  empowered  to  use  the  entire  land  and  naval 
forces  of  the  United  States,  and  to  call  into  the  actual  service  of 
the  United  States  the  militia  of  the  several  States,  to  such  extent  as 
may  be  necessary  to  carry  this  Act  into  effect. 

Approved  April  25,  1898. 


PROTOCOL    OF   AUGUST    12,  1898 

(30  Statutes  at  Large  1742) 

William  R.  Day,  Secretary  of  State  of  the  United  States,  and  His 
Excellency  Jules  Cambon,  Ambassador  Extraordinary  and  Pleni- 
potentiary of  the  Republic  of  France  at  Washington,  respectively 
possessing  fjpr  this  purpose  full  authority  from  the  Government 
of  the  United  States  and  the  Government  of  Spain,  have  concluded 
and  signed  the  following  articles,  embodying  the  terms  on  which 
the  two  Governments  have  agreed  in  respect  to  the  matters  herein- 
after set  forth,  having  in  view  the  establishment  of  peace  between 
the  two  countries,  that  is  to  say : 

Article  I 

Spain  will  relinquish  all  claim  of  sovereignty  over  and  title 
to  Cuba. 

Article  II 

Spain  will  cede  to  the  United  States  the  island  of  Porto  Rico 
and  other  islands  now  under  Spanish  sovereignty  in  the  West 
Indies,  and  also  an  island  in  the  Ladrones  to  be  selected  by  the 
United  States. 


APPENDIX  195 

Article  111 

The  United  States  will  occupy  and  hold  the  city,  bay  and  harbor 
of  Manila,  pending  the  conclusion  of  a  treaty  of  peace  which 
shall  determine  the  control,  disposition  and  government  of  the 
Philippines. 

Article  IV 

Spain  will  immediately  evacuate  Cuba,  Porto  Rico  and  other 
islands  now  under  Spanish  sovereignty  in  the  West  Indies;  and  to 
this  end  each  Government  will,  within  ten  days  after  the  signing 
of  this  protocol,  appoint  Commissioners,  and  the  Commissioners 
so  appointed  shall,  within  thirty  days  after  the  signing  of  this 
protocol,  meet  at  Havana  for  the  purpose  of  arranging  and  carry- 
ing out  the  details  of  the  aforesaid  evacuation  of  Cuba  and 
the  adjacent  Spanish  islands ;  and  each  Government  will,  within 
ten  days  after  the  signing  of  this  protocol,  also  appoint  other  Com- 
missioners, who  shall,  within  thirty  days  after  the  signing  of  this 
protocol,  meet  at  San  Juan,  in  Porto  Rico,  for  the  purpose  of 
arranging  and  carrying  out  the  details  of  the  aforesaid  evacuation 
of  Porto  Rico  and  other  islands  now  under  Spanish  sovereignty  in 
the  West  Indies. 

Article  V 

The  United  States  and  Spain  will  each  appoint  not  more  than 
five  Commissioners  to  treat  of  peace,  and  the  Commissioners  so 
appointed  shall  meet  at  Paris  not  later  than  October  i,  1898,  and 
proceed  to  the  negotiation  and  conclusion  of  a  treaty  of  peace, 
which  treaty  shall  be  subject  to  ratification  according  to  the  re- 
spective constitutional  forms  of  the  two  countries. 

Article  VI 

Upon  the  conclusion  and  signing  of  this  protocol,  hostilities 
between  the  two  countries  shall  be  suspended,  and  notice  to  that 
efiect  shall  be  given  as  soon  as  possible  by  each  Government  to  the 
commanders  of  its  military  and  naval  forces. 

Done  at  Washington  in  duplicate,  in  English  and  in  French,  by 

the  undersigned,  who  have  hereunto  set  their  hands  and  seals,  the 

twelfth  day  of  August,  1898. 

[seal.]         William  R.  Dav. 

[seal.]        Jules  Cambon. 


W 


196         LAW  AND  POLICY  OF  ANNEXATION 
PROCLAMATION    OF  THE   PROTOCOL 

(30  U.  S.  Statutes  at  Large  1780) 

Whereas,  By  a  protocol  concluded  and  signed  August  12,  1898, 
by  William  R.  Day,  Secretary  of  State  of  the  United  States,  and 
His  Excellency  Jules  Cambon,  Ambassador  Extraordinary  and 
Plenipotentiary  of  the  Republic  of  France  at  Washington,  respec- 
tively representing  for  this  purpose  the  Government  of  the  United 
States  and  the  Government  of  Spain,  the  Governments  of  the 
United  States  and  Spain  have  formally  agreed  upon  the  terms  on 
which  negotiations  for  the  establishment  of  peace  between  the  two 
countries  shall  be  undertaken  :  and. 

Whereas,  It  is  in  said  protocol  agreed  that  upon  its  conclusion 
and  signature  hostilities  between  the  two  countries  shall  be  sus- 
pended, and  that  notice  to  that  effect  shall  be  given  as  soon  as  pos- 
sible by  each  Government  to  the  commanders  of  its  military  and 
naval  forces : 

Now,  Therefore,  I,  William  McKinley,  President  of  the  United 
States,  do,  in  accordance  with  the  stipulations  of  the  protocol,  de- 
clare and  proclaim  on  the  part  of  the  United  States  a  suspension  of 
hostilities,  and  do  hereby  command  that  orders  be  immediately  given 
through  the  proper  channels  to  the  commanders  of  the  military  and 
naval  forces  of  the  United  States  to  abstain  from  all  acts  inconsistent 
with  this  proclamation. 

Iti  Wit7iess  Whereof  I  have  hereunto  set  my  hand  and  caused 
the  seal  of  the  United  States  to  be  affixed. 

Done  at  the  City  of  Washington  this  twelfth  day  of  August  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  ninety-eight,  and 
of  the  Independence  of  the  United  States  the  one  hundred  and 
twenty-third. 

William  McKinley. 

By  the  President, 

Wilijam  R.  Day, 

Secretary  of  State. 


APPENDIX  197 

THE   TREATY    OF   PARIS 
(30  U.  S.  Statutes  at  Large  1754) 

Treaty  of  Peace  between  the  United  States  of  America  and  the  King- 
dom of  Spain.  Signed  at  Paris  December  10,  i8g8 ;  ratification 
advised  by  the  Senate  February  6,  i8gg  ;  ratified  by  the  President 
P'ebruary  6,  i8pp  ;  ratified  by  Her  Majesty  the  Queen  Regent  of 
Spain  March  ig,  l8gp ;  ratifications  exchanged  at  Washington 
April  II,  i8gg  ;  proclaimed,  Washington,  April  11,  i8gg. 

By  the  President  of  the  United  States  of  America 

A    PROCLAMATION 

Whereas,  a  Treaty  of  Peace  between  the  United  States  of  Amer- 
ica and  Her  Majesty  the  Queen  Regent  of  Spain,  in  the  name  of 
her  August  Son,  Don  Alfonso  XIII,  was  concluded  and  signed  by 
their  respective  plenipotentiaries  at  Paris  on  the  tenth  day  of 
December,  1898,  the  original  of  which  Convention  being  in  the 
English  and  Spanish  languages  is,  word  for  word,  as  follows  : 

The  United  States  of  America  and  Her  Majesty  the  Queen  Regefit 
of  Spain,  in  the  name  of  her  August  Son,  Don  Alfonso  XIII, 
desiring  to  end  the  state  of  war  now  existing  between  the  two 
countries,  have  for  that  purpose  appointed  as  plenipotentiaries : 

The  President  of  the  United  States, 

William  R.  Day,  Cushman  K.  Davis,  William  P.  Frye, 
George  Gray,  and  Whitelaw  Reid,  citizens  of  the  United  States ; 
and  Her  Majesty  the  Queen  Regent  of  Spain,  Don  Eugenic 
Montero  Rigs,  President  of  the  Senate,  Don  Buenaventura 
DE  Abarzuza,  Senator  of  the  Kingdom  and  ex-Minister  of 
the  Crown,  Don  Josi  de  Garnica,  Deputy  to  the  Cortes  and 
Associate  Justice  of  the  Supreme  Court,  Don  Wenceslao 
Ramirez  de  Villa  Urrutia,  Envoy  Extraordinary  and  Minister 
Plenipotentiary  at  Brussels,  and  Don  Rafael  Cerero,  General 
of  Division ; 

Who,  having  assembled  in  Paris,  and  having  exchanged  their 
full  powers,  which  were  found  to  be  in  due  and  proper  form,  have, 
after  discussion  of  the  matters  before  them,  agreed  upon  the  fol- 
lowing articles : 


1 1 


198         LAW  AND  POLICY  OF  ANNEXATION- 

Article  I 

Spain  relinquishes  all  claim  of  sovereignty  over  and  title  to 
Cuba. 

And  as  the  island  is,  upon  its  evacuation  by  Spain,  to  be  occu- 
pied by  the  United  States,  the  United  States  will,  so  long  as  such 
occupation  shall  last,  assume  and  discharge  the  obligations  that 
may  under  international  law  result  from  the  fact  of  its  occupation, 
for  the  protection  of  life  and  property. 


Article  II 

Spain  cedes  to  the  United  States  the  island  of  Porto  Rico  and 
other  islands  now  under  Spanish  sovereignty  in  the  West  Indies, 
and  the  island  of  Guam  in  the  Marianas  or  Ladrones. 


Article  III 

Spain  cedes  to  the  United  States  the  archipelago  known  as  the 
Philippine  Islands,  and  comprehending  the  islands  lying  within  the 
following  lines : 

A  line  running  from  west  to  east  along  or  near  the  twentieth 
parallel  of  north  latitude,  and  through  the  middle  of  the  navigable 
channel  of  Bachi,  from  the  one  hundred  and  eighteenth  (118th) 
to  the  one  hundred  and  twenty-seventh  (127th)  degree  meridian 
of  longitude  east  of  Greenwich,  thence  along  the  one  hundred  and 
twenty-seventh  (127th)  degree  meridian  of  longitude  east  of  Green- 
wich to  the  parallel  of  four  degrees  and  forty-five  minutes  (4:45) 
north  latitude,  thence  along  the  parallel  of  four  degrees  and  forty- 
five  minutes  (4:45)  north  latitude  to  its  intersection  with  the  merid- 
ian of  longitude  one  hundred  and  nineteen  degrees  and  thirty-five 
minutes  (119:35)  east  of  Greenwich,  thence  along  the  meridian  of 
longitude  one  hundred  and  nineteen  degrees  and  thirty-five  min- 
utes (119:35)  east  of  Greenwich  to  the  parallel  of  latitude  seven 
degrees  and  forty  minutes  (7:40)  north,  thence  along  the  parallel 
of  latitude  seven  degrees  and  forty  minutes  (7:40)  north  to  its  in- 
tersection with  the  one  hundred  and  sixteenth  (i  i6th)  degree  merid- 
ian of  longitude  east  of  Greenwich,  thence  by  a  direct  line  to  the 
intersection  of  the  tenth  (loth)  degree  parallel  of  north  latitude 
with  the  one  hundred  and  eighteenth  (ii8th)  degree  meridian  of 


APPENDIX  199 

longitude  east  of  Greenwich,  and  thence  along  the  (jne  hundred 
and  eighteenth  (ii8th)  degree  meridian  of  longitude  east  of  Green- 
wich to  the  point  of  beginning.  ,  r 

The  United  States  will  pay  to  Spain  the  sum  of  twenty  million 
dollars  ($20,000,000)  within  three  months  after  the  exchange  of 
the  ratifications  of  the  present  treaty. 


Article  IV 

The  United  States  will,  for  the  term  of  ten  years  from  the  date 
of  the  exchange  of  the  ratifications  of  the  present  treaty,  admit 
Spanish  ships  and  merchandise  to  the  ports  of  the  Philippine  Islands 
on  the  same  terms  as  ships  and  merchandise  of  the  United  States. 


Article  V 

The  United  States  will,  upon  the  signature  of  the  present  treaty, 
send  back  to  Spain,  at  its  own  cost,  the  Spanish  soldiers  taken  as 
prisoners  of  war  on  the  capture  of  Manila  by  the  American  forces. 
The  arms  of  the  soldiers  in  question  shall  be  restored  to  them. 

Spain  will,  upon  the  exchange  of  the  ratifications  of  the  present 
treaty,  proceed  to  evacuate  the  Philippines,  as  well  as  the  island  of 
Guam,  on  terms  similar  to  those  agreed  upon  by  the  Commission- 
ers appointed  to  arrange  for  the  evacuation  of  Porto  Rico  and 
other  islands  in  the  West  Indies,  under  the  Protocol  of  August  12, 
1898,  which  is  to  continue  in  force  till  its  provisions  are  completely 
executed. 

The  time  within  which  the  evacuation  of  the  Philippine  Islands 
and  Guam  shall  be  completed  shall  be  fixed  by  the  two  Govern- 
ments. Stands  of  colors,  uncaptured  war  vessels,  small  arms,  guns 
of  all  calibers,  with  their  carriages  and  accessories,  powder,  ammu- 
nition, live  stock,  and  materials  and  supplies  of  all  kinds,  belonging 
to  the  land  and  naval  forces  of  Spain  in  the  Philippines  and  Guam, 
remain  the  property  of  Spain.  Pieces  of  heavy  ordnance,  exclu- 
sive of  field  artillery,  in  the  fortifications  and  coast  defenses  shall 
remain  in  their  emplacements  for  the  term  of  six  months,  to  be 
reckoned  from  the  exchange  of  ratifications  of  the  treaty ;  and  the 
United  States  may,  in  the  meantime,  purchase  such  material  from 
Spain,  if  a  satisfactory  agreement  between  the  two  Governments 
on  the  subject  shall  be  reached. 


200         LAW  AND  POLICY  OF  ANNEXATLON 

Article  VI 

Spain  will,  upon  the  signature  of  the  present  treaty,  release  all 
prisoners  of  war,  and  all  persons  detained  or  imprisoned  for  political 
offenses,  in  connection  with  the  insurrections  in  Cuba  and  the 
Philippines  and  the  war  with  the  United  States. 

Reciprocally,  the  United  States  will  release  all  persons  made 
prisoners  of  war  by  the  American  forces,  and  will  undertake  to 
obtain  the  release  of  all  Spanish  prisoners  in  the  hands  of  the  in- 
surgents in  Cuba  and  the  Philippines. 

The  Government  of  the  United  States  will  at  its  own  cost  return 
to  Spain  and  the  Government  of  Spain  will  at  its  own  cost  return 
to  the  United  States,  Cuba,  Porto  Rico,  and  the  Philippines,  ac- 
cording to  the  situation  of  their  respective  homes,  prisoners  released 
or  caused  to  be  released  by  them,  respectively,  under  this  article. 

Article  VII 

The  United  States  and  Spain  mutually  rehnquish  all  claims  for 
indemnity,  national  and  individual,  of  every  kind,  of  either  Govern- 
ment, or  of  its  citizens  or  subjects,  against  the  other  Government, 
that  may  have  arisen  since  the  beginning  of  the  late  insurrection 
in  Cuba  and  prior  to  the  exchange  of  ratifications  of  the  present 
treaty,  including  all  claims  for  indemnity  for  the  cost  of  the  war. 
The  United  States  will  adjudicate  and  settle  the  claims  of  its  citizens 
against  Spain  relinquished  in  this  article. 

Article  VIII 

In  conformity  with  the  provisions  of  Articles  I,  II,  and  III  of  this 
treaty,  Spain  relinquishes  in  Cuba,  and  cedes  in  Porto  Rico  and 
other  islands  in  the  West  Indies,  in  the  island  of  Guam,  and  in  the 
Philippine  Archipelago,  all  the  buildings,  wharves,  l)arracks,  forts, 
structures,  public  highways  and  other  immovable  property  which  in 
conformity  with  law  belong  to  the  public  domain,  and  as  such  belong 
to  the  Crown  of  Spain. 

And  it  is  hereby  declared  that  the  relinquishment  or  cession,  as 
the  case  may  be,  to  which  the  preceding  paragraph  refers,  cannot 
in  any  respect  impair  the  pro])erty  or  rights  which  by  law  belong  to 
the  peaceful  possession  of  proi)erty  of  all  kinds,  of  provinces,  mu- 
nicipalities, public  or  private  establishments,  ecclesiastical  or  civic 


APPENDIX  20 1 

bodies,  or  any  other  associations  having  legal  capacity  to  acquire 
and  possess  property  in  the  aforesaid  territories  renounced  or  ceded, 
or  of  private  individuals,  of  whatsoever  nationality  such  individuals 
may  be. 

The  aforesaid  relinquishment  or  cession,  as  the  case  may  be,  in- 
cludes all  documents  exclusively  referring  to  the  sovereignty  relin- 
quished or  ceded  that  may  exist  in  the  archives  of  the  Peninsula. 
Where  any  document  in  such  archives  only  in  part  relates  to  said 
sovereignty  a  copy  of  such  part  will  be  furnished  whenever  it  shall 
be  requested.  Like  rules  shall  be  reciprocally  observed  in  favor  of 
Spain  in  respect  of  documents  in  the  archives  of  the  islands  above 
referred  to. 

In  the  aforesaid  relinquishment  or  cession,  as  the  case  may  be, 
are  also  included  such  rights  as  the  Crown  of  Spain  and  its  authorities 
possess  in  respect  of  the  official  archives  and  records,  executive  as 
well  as  judicial,  in  the  islands  above  referred  to,  which  relate  to  said 
islands  or  the  rights  and  property  of  their  inhabitants.  Such  ar- 
chives and  records  shall  be  carefully  preserved,  and  private  persons 
shall  without  distinction  have  the  right  to  require,  in  accordance 
with  the  law,  authenticated  copies  of  the  contracts,  wills  and  other 
instruments  forming  part  of  notarial  protocols  or  files,  or  which  may 
be  contained  in  the  executive  or  judicial  archives,  be  the  latter  in 
Spain  or  in  the  islands  aforesaid. 


Article  IX 

Spanish  subjects,  natives  of  the  Peninsula,  residing  in  the  terri- 
tory over  which  Spain  by  the  present  treaty  relinquishes  or  cedes 
her  sovereignty,  may  remain  in  such  territory  or  may  remove 
therefrom,  retaining  in  either  event  all  their  rights  of  property,  in- 
cluding the  right  to  sell  or  dispose  of  such  property  or  of  its  pro- 
ceeds ;  and  they  shall  also  have  the  right  to  carry  on  their  industry, 
commerce  and  professions,  being  subject  in  respect  thereof  to  such 
laws  as  are  applicable  to  other  foreigners.  In  case  they  remain  in  the 
territory  they  may  preserve  their  allegiance  to  the  Crown  of  Spain 
by  making,  before  a  court  of  record,  within  a  year  from  the  date  of 
the  exchange  of  ratifications  of  this  treaty,  a  declaration  of  their  de- 
cision to  preserve  such  allegiance ;  in  default  ot  which  declaration 
they  shall  be  held  to  have  renounced  it  and  to  have  adopted  the 
nationality  of  the  territory  in  which  they  may  reside.     \An  agree- 


202  LAW  AND  POLICY  OF  ANNEXATION 

meut  of  March  29,  i()oo,  extended  the  time  for  fnaking  declaration  for 
six  months  after  April  1 1,  1900.] 

The  civil  rights  and  political  status  of  the  native  inhabitants  of 
the  territories  hereby  ceded  to  the  United  States  shall  be  deter- 
mined by  the  Congress. 

Article  X 

The  inhabitants  of  the  territories  over  which  Spain  relinquishes 
or  cedes  her  sovereignty  shall  be  secured  in  the  free  exercise  of 
their  religion. 

Article  XI 

The  Spaniards  residing  in  the  territories  over  which  Spain  by 
this  treaty  cedes  or  relinquishes  her  sovereignty  shall  be  subject  in 
matters  civil  as  well  as  criminal  to  the  jurisdiction  of  the  courts  of 
the  country  wherein  they  reside,  pursuant  to  the  ordinary  laws 
governing  the  same;  and  they  shall  have  the  right  to  appear  before 
such  courts,  and  to  pursue  the  same  course  as  citizens  of  the  country 
to  which  the  courts  belong. 

Article  XII 

Judicial  proceedings  pending  at  the  time  of  the  exchange  of  rati- 
fications of  this  treaty  in  the  territories  over  which  Spain  relin- 
quishes or  cedes  her  sovereignty  shall  be  determined  according  to 
the  following  rules: 

One.  Judgments  rendered  either  in  civil  suits  between  private 
individuals  or  in  criminal  matters,  before  the  date  mentioned,  and 
with  respect  to  which  there  is  no  recourse  or  right  of  review  under 
the  Spanish  law,  shall  be  deemed  to  be  final,  and  shall  be  executed 
in  due  form  by  competent  authority  in  the  territory  within  which 
such  judgments  should  be  carried  out. 

2wo.  Civil  suits  between  private  individuals  which  may  on  the 
date  mentioned  be  undetermined  shall  be  prosecuted  to  judgment 
before  the  court  in  which  they  may  then  be  pending,  or  in  the 
court  that  may  be  substituted  therefor. 

Three.  Criminal  actions  pending  on  the  date  mentioned  before 
the  Sui)reme  Court  of  Spain  against  citizens  of  the  territory  which 
by  this  treaty  ceases  to  be  Spanish  shall  continue  under  its  juris- 
diction until  final  judgment ;  but,  such  judgment  having  been  ren- 


II 


APPENDIX  203 

dered,  the  execution  thereof  shall  be  committed  to  the  competent 
authority  of  the  place  in  which  the  case  arose. 

Article  XIII 

The  rights  of  property  secured  by  copyrights  and  patents  ac- 
quired by  Spaniards  in  the  island  of  Cuba,  and  in  Porto  Rico,  the 
Philippines,  and  other  ceded  territories,  at  the  time  of  the  exchange 
of  the  ratifications  of  this  treaty,  shall  continue  to  be  respected. 
Spanish  scientific,  literary  and  artistic  works  not  subversive  of  pub- 
lic order  in  the  territories  in  question  shall  continue  to  be  admitted 
free  of  duty  into  such  territories  for  the  period  of  ten  years,  to  be 
reckoned  from  the  date  of  the  exchange  of  the  ratifications  of  this 
treaty. 

Article  XIV 

Spain  shall  have  the  power  to  establish  consular  officers  in  the 
ports  and  places  of  the  territories,  the  sovereignty  over  which  has 
either  been  relinquished  or  ceded  by  the  present  treaty. 

Article  XV 

The  Government  of  each  country  will,  for  the  term  of  ten  years, 
accord  to  the  merchant  vessels  of  the  other  country  the  same  treat- 
ment in  respect  to  all  port  charges,  including  entrance  and  clearance 
dues,  Ught  dues,  and  tonnage  duties,  as  it  accords  to  its  own  mer- 
chant vessels,  not  engaged  in  the  coastwise  trade. 

This  article  may  at  any  time  be  terminated  on  six  months'  notice 
given  by  either  Government  to  the  other. 

Article  XVI 

It  is  understood  that  any  obligations  assumed  in  this  treaty  by 
the  United  States  with  respect  to  Cuba  are  limited  to  the  time  of 
its  occupancy  thereof;  but  it  will  upon  the  termination  of  such 
occupancy  advise  any  Government  established  in  the  island  to 
assume  the  same  obligations. 

Article  XVII 

The  present  treaty  shall  be  ratified  by  the  President  of  the  United 
States,  by  and  with  the  advice  and  consent  of  the  Senate  thereof, 
and  by  Her  Majesty  the  Queen  Regent  of  Spain ;  and  the  ratifica- 


204         LAW  AND  POLICY  OF  ANNEXATION 

tions  shall  be  exchanged  at  Washington  within  six  months  from 
the  date  hereof,  or  earlier  if  possible. 

In  faith  whereof  we,  the  respective  plenipotentiaries,  have  signed 
this  treaty  and  have  hereunto  affixed  our  seals. 

Done  in  duplicate  at  Paris,  the  tenth  day  of  December,  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  ninety-eight. 

William  R.  Day.  Eugenio  Montero  Rios. 

CusHMAN  K.  Davis.  B.  de  Abarzuza. 

William  P.  Frye.  J.  de  Garnica. 

George  Gray.  W.  R.  de  Villa  Urrutia. 

Whitelaw  Reid.  Rafael  Cerero. 

And  whereas  the  said  Convention  has  been  duly  ratified  on 
both  parts,  and  the  ratifications  of  the  two  Governments  were  ex- 
changed in  the  City  of  Washington  on  the  eleventh  day  of  April, 
one  thousand  eight  hundred  and  ninety-nine  : 

Now  therefore  be  it  known  that  I,  William  McKinley,  Presi- 
dent of  the  United  States  of  America,  have  caused  the  said  Con- 
vention to  be  made  public,  to  the  end  that  the  same  and  every 
article  and  clause  thereof  may  be  observed  and  fulfilled  with  good 
faith  by  the  United  States  and  the  citizens  thereof. 

In  witness  whereof  I  have  hereunto  set  my  hand  and  caused 
the  seal  of  the  United  States  to  be  affixed. 

Done  at  the  City  of  Washington  this  eleventh  day  of  April, 
in  the  year  of  our  Lord  one  thousand  eight  hundred  and  ninety- 
nine,  and  of  the  Independence  of  the  United  States  the  one  hundred 
and  twenty-third. 

William  McKinley. 

By  the  President, 

John  Hay, 

Secretary  of  State. 


ACT   OF    MARCH    21,   1899 

(30  U.  S.  Statutes  at  Large  993) 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the 
United  States  of  America  in  Congress  assembled,  That  for  the  pur- 
pose  of  carrying  out  the  obligations  of  the   treaty  between  the 


APPENDIX  205 

United  States  and  Spain  concluded  at  Paris  on  the  tenth  day  of 
December,  anno  Domini  eighteen  hundred  and  ninety-eight,  to 
become  immediately  available  upon  the  exchange  of  the  ratifica- 
tions of  said  treaty,  there  is  hereby  appropriated,  out  of  any  money 
in  the  Treasury  not  otherwise  appropriated,  the  sum  of  twenty 
million  dollars. 

Approved  March  2,  1899. 


(B) 

LEASE   OF   KIAO-CHAU 

(Blue  Book  China  No.  i  (1899),  p.  69) 
Extract  from  the  "  Reichsanzeiger"  of  April  29,  1898 

[translation] 

The  following  is  the  text  of  the  treaty  between  the  German 
Empire  and  China  respecting  the  lease  of  Kiao-chau,  which  was 
received  in  Berlin  on  the  28th  April,  1898: 

The  incidents  connected  with  the  Mission  in  the  Prefecture  of 
Tsao-chau-foo,  in  Shantung,  being  now  closed,  the  Imperial  Chinese 
Government  consider  it  advisable  to  give  a  special  proof  of  their 
grateful  appreciation  of  the  friendship  shown  to  them  by  Germany. 
The  Imperial  German  and  the  Imperial  Chinese  Governments, 
therefore,  inspired  by  the  equal  and  mutual  wish  to  strengthen  the 
bands  of  friendship  which  unite  the  two  countries,  and  to  develop 
the  economic  and  commercial  relations  between  the  subjects  of  the 
two  States,  have  concluded  the  following  separate  Convention : 

Article  I 

His  Majesty  the  Emperor  of  China,  guided  by  the  intention  to 
strengthen  the  friendly  relations  between  China  and  Germany,  and 
at  the  same  time  to  increase  the  military  readiness  of  the  Chinese 
Empire,  engages,  while  reserving  to  himself  all  rights  of  sover- 
eignty in  a  zone  of  50  kilom.  (100  Chinese  li)  surrounding  the 
Bay  of  Kiao-chau  at  high  water,  to  permit  the  free  passage  of 
German  troops  within  this  zone  at  any  time,  as  also  to  abstain  from 
taking  any  measures,  or  issuing  any  Ordinances  therein,  without 


2o6         LAW  AND  POLICY  OF  ANNEXATION 

the  previous  consent  of  the  German  Government,  and  especially  to 
place  no  obstacle  in  the  way  of  any  Regulation  of  the  water-courses 
which  may  prove  to  be  necessary.  His  Majesty  the  Emperor  of 
China,  at  the  same  time,  reserves  to  himself  the  right  to  station 
troops  within  that  zone,  in  agreement  with  the  German  Govern- 
ment, and  to  take  other  military  measures. 

Article  II 

With  the  intention  of  meeting  the  legitimate  desire  of  His  Majesty 
the  German  Emperor,  that  Germany,  like  other  Powers,  should 
hold  a  place  on  the  Chinese  coast  for  the  repair  and  equipment  of 
her  ships,  for  the  storage  of  materials  and  provisions  for  the  same, 
and  for  other  arrangements  connected  therewith.  His  Majesty  the 
Emperor  of  China  cedes  to  Germany  on  lease,  provisionally  for 
ninety-nine  years,  both  sides  of  the  entrance  to  the  Bay  of  Kiao- 
chau.  Germany  engages  to  construct,  at  a  suitable  moment,  on 
the  territory  thus  ceded,  fortifications  for  the  protection  of  the 
buildings  to  be  constructed  there  and  of  the  entrance  to  the  harbor. 

Article  III 

In  order  to  avoid  the  possibility  of  conflicts,  the  Imperial  Chinese 
Government  will  abstain  from  exercising  rights  of  sovereignty  in 
the  ceded  territory  during  the  term  of  the  lease,  and  leaves  the 
exercise  of  the  same  to  Germany,  within  the  following  limits : 
(i)  On  the  northern  side  of  the  entrance  to  the  bay  : 
The  peninsula  bounded  to  the  northeast  by  a  line  drawn  from 
the  northeastern  corner  of  Potato  Island  to  Loshan  Harbor. 

(2)  On  the  southern  side  of  the  entrance  to  the  bay : 

The  peninsula  bounded  to  the  southwest  by  a  line  drawn  from 
the  southwesternmost  point  of  the  bay  lying  to  the  south-southwest 
of  Chiposan  Island  in  the  direction  of  Tolosan  Island. 

(3)  The  Island  of  Chiposan  and  Potato  Island. 

(4)  The  whole  water  area  of  the  bay  up  to  the  highest  water- 
mark at  present  known. 

(5)  All  islands  lying  seaward  from  Kiao-chau  Bay,  which  may 
be  of  importance  for  its  defense,  such  as  Tolosan,  Chalienchow,  etc. 

The  High  Contracting  Parties  reserve  to  themselves  to  delimi- 
tate more  accurately,  in  accordance  with  local  traditions,  the  boun- 
daries of  the  territory  leased  to  Germany  and  of  the  50-kilom.  zone 


APPENDIX  207 

round  the  l)ay,  l)y  means  of  Commissioners  to  be  appointed  on 
both  sides. 

Chinese  ships  of  war  and  merchant-vessels  shall  enjoy  the  same 
privileges  in  the  Bay  of  Kiao-chau  as  the  ships  of  other  nations  on 
friendly  terms  with  Germany;  and  the  entrance,  departure,  and 
sojourn  of  Chinese  ships  in  the  bay  shall  not  be  subject  to  any 
restrictions  other  than  those  which  the  Imperial  German  Govern- 
ment, in  virtue  of  the  rights  of  sovereignty  over  the  whole  of  the 
water  area  of  the  bay  transferred  to  Germany,  may  at  any  time 
find  it  necessary  to  impose  with  regard  to  the  ships  of  other  nations. 

Article  IV 

Germany  engages  to  construct  the  necessary  navigation  signals 
on  the  islands  and  shallows  at  the  entrance  of  the  bay. 

No  dues  shall  be  demanded  from  Chinese  ships  of  war  and  mer- 
chant-vessels in  the  Bay  of  Kiao-chau,  except  those  which  may  be 
levied  upon  other  vessels  for  the  purpose  of  maintaining  the  neces- 
sary harbor  arrangements  and  quays. 

Article  V 

Should  Germany  at  some  future  time  express  the  wish  to  return 
Kiao-chau  Bay  to  China  before  the  expiration  of  the  lease,  China 
engages  to  refund  to  Germany  the  expenditure  she  has  incurred  at 
Kiao-chau,  and  to  cede  to  Germany  a  more  suitable  place. 

Germany  engages  at  no  time  to  sublet  the  territory  leased  from 
China  to  another  Power. 

The  Chinese  population  dwelling  in  the  ceded  territory  shall  at 
all  times  enjoy  the  protection  of  the  German  Government,  provided 
that  they  behave  in  conformity  with  law  and  order ;  unless  their 
land  is  required  for  other  purposes  they  may  remain  there. 

If  land  belonging  to  Chinese  owners  is  required  for  any  other 
purpose,  the  owner  will  receive  compensation. 

As  regards  the  reestablishment  of  Chinese  customs  stations  which 
formerly  existed  outside  the  ceded  territory,  but  within  the  50-kilom. 
zone,  the  Imperial  German  Government  intends  to  come  to  an 
agreement  with  the  Chinese  Government  for  the  definitive  regula- 
tion of  the  customs  frontier,  and  the  mode  of  collecting  customs 
duties,  in  a  manner  which  will  safeguard  all  the  interests  of  China, 
and  proposes  to  enter  into  further  negotiations  on  the  subject. 


2o8         LAW  AND  POLICY  OF  ANNEXATION 

The  above  Agreement  shall  be  ratified  by  the  Sovereigns  of  both 
the  Contracting  States,  and  the  ratifications  exchanged  in  such 
manner  that,  after  the  receipt  in  Berlin  of  the  Treaty  ratified  by 
China,  the  copy  ratified  by  Germany  shall  be  handed  to  the  Chinese 
Minister  in  Berlin. 

The  foregoing  Treaty  has  been  drawn  up  in  four  copies,  two  in 
German  and  two  in  Chinese,  and  was  signed  by  the  Representa- 
tives of  the  two  Contracting  States  on  the  6th  March,  1898,  equal 
to  the  fourteenth  day  of  the  second  month  in  the  twenty-fourth 
year  Kuang-hsii. 

(Great  Seal  of  the  Tsung-li  Yamen.) 

The  Imperial  German  Minister, 

(Signed)     Baron  von  Heyking. 

Li  Hung-chang  (in  Chinese), 

Imperial  Chinese  Grand  Secretary,  Minister 
of  the  Tsung-li  Ya?neji,  &'c.,  &^c. 

Weng  Tung-ho  (in  Chinese), 

Imperial  Chinese  Grand  Secretary,  Member 
of  the  Council  of  State,  Minister  of  the 
Tsung-li  Yamen,  dr'c,  &'c. 


CHARTER   GERMAN    COLONIZATION  SOCIETY 

(Hertslet,  Map  of  Africa  by  Treaty,  2d  Ed.,  I,  303) 

Charter  of  Protection  granted  to  the  German  Colonization  So- 
ciety, for  certain  Acquisitions  of  Territory  made  by  it  on  the  South 
East  Coast  of  Africa  between  the  Territory  of  the  Sultan  of  Zanzibar 
and  Lake  Tanganyika.     Berlin,  17th  February,  1885. 

[translation] 

His  Majesty  the  Emperor  has  been  graciously  pleased  to  address 
the  following  Imperial  "  Charter  of  Protection  "  to  the  Society  for 
German  Colonization  for  their  territorial  acquisitions  in  East 
Africa : 

"  We,  William,  by  the  Grace  of  God  German  Emperor,  King  of 
Prussia,  make  known  and  ordain  as  follows : 


APPENDIX  209 

"  The  present  Presidents  of  the  Society  for  German  Colonization, 
Dr.  Karl  Peters  and  our  Chamberlain  Felix,  Count  Behr-Bandclin, 
having  sought  our  protection  for  the  territorial  acquisitions  of  the 
Society  in  East  Africa,  west  of  the  Empire  of  the  Sultan  of  Zanzibar, 
and  outside  of  the  suzerainty  ('  Oberhoheit ')  of  other  Powers,  and 
the  Treaties  lately  concluded  by  the  said  Dr.  Karl  Peters  with  the 
Rulers  of  Usagara,  Nguru,  Useguha,  and  Ukami  in  November  and 
December  last,  by  which  these  territories  have  been  ceded  to  him 
for  the  German  Colonial  Society  with  sovereign  rights  ('  Landes- 
hoheit ')  over  the  same,  having  been  laid  before  us,  with  the  Peti- 
tion to  place  these  territories  under  our  suzerainty,  we  hereby  de- 
clare that  we  have  accepted  the  suzerainty,  and  have  placed  under 
our  Imperial  protection  the  territories  in  question,  reserving  to  our- 
selves a  right  of  deciding  hereafter  respecting  any  further  acquisi- 
tions in  the  same  district  which  may  be  proved  to  have  been  ob- 
tained by  legal  contract  by  the  Society  or  by  their  legitimate 
successors. 

"  We  grant  unto  the  said  Society,  on  the  condition  that  it  remains 
German,  and  that  the  members  of  the  Board  of  Directors  or  other 
persons  intrusted  with  its  management  are  subjects  of  the  German 
Empire,  as  well  as  to  the  legitimate  successors  of  this  Society  under 
the  same  conditions,  the  authority  to  exercise  all  rights  arising  from 
the  Treaties  submitted  to  us,  including  that  of  jurisdiction  over  both 
the  natives  and  the  subjects  of  Germany  and  of  other  nations  es- 
tablished in  those  territories,  or  sojourning  there  for  commercial 
or  other  purposes,  under  the  superintendence  of  our  Government, 
subject  to  further  regulations  to  be  issued  by  us,  and  supplementary 
additions  to  this,  our  Charter  of  Protection. 

"  In  witness  whereof  we  have  with  our  Royal  hand  executed  this 
Charter  of  Protection,  and  have  caused  it  to  be  sealed  with  our 
Imperial  seal. 

"Given  at  Berlin  the  17th  February,  1885. 

"WILLIAM. 
"  V.  Bismarck." 


FRENCH    PROTECTORATE    OVER    MADAGASCAR 

(Foreign  Relations  of  the  U.  S.,  1886,  p.  300) 

The  Governments  of  the  French  Republic  and  of  Her  Majesty 
the  Queen  of  Madagascar,  wishing  to  prevent  forever  the  renewal 

14 


2IO         LAW  AND  POLICY  OF  ANNEXATION 

of  the  dififerences  which  have  lately  arisen,  and  desiring  to  strengthen 
their  former  friendly  relations,  have  agreed  to  conclude  a  conven- 
tion to  this  effect,  and  have  named  for  plenipotentiaries  to  wit,  Mr. 
Paul  Emile  Miot,  rear-admiral  commanding  in  chief  the  naval 
division  of  the  Indian  Ocean,  and  Mr.  Salvator  Patrimonio,  minis- 
ter plenipotentiary  for  the  French  Republic,  and  General  Digby 
Willoughby,  general  officer  commanding  the  Malagasy  forces  and 
minister  plenipotentiary  for  the  Government  of  Her  Majesty  the 
Queen  of  Madagascar,  who,  after  having  exchanged  their  full  pow- 
ers, found  in  good  and  due  form,  have  agreed  upon  the  following 
articles,  subject  to  their  ratification : 

(i)  The  Government  of  the  French  Republic  will  represent  Mad- 
agascar in  all  its  foreign  relations.  The  Malagasies  abroad  will  be 
placed  under  the  protection  of  France. 

(2)  A  resident  representing  the  Government  of  the  Republic  will 
control  the  foreign  relations  of  Madagascar,  without  interfering  in 
the  internal  administration  of  the  country. 

(3)  He  will  reside  at  Antananarivo,  with  a  military  guard,  and 
will  be  entitled  to  be  received  in  private  personal  audience  by  the 
Queen. 

(4)  The  Malagasy  authorities  under  the  Queen  will  not  intervene 
in  questions  arising  between  French  subjects  or  between  French 
and  foreign  subjects.  Actions  at  law  between  Frenchmen  and  Ma- 
lagasies will  be  tried  by  the  resident,  assisted  by  a  Malagasy  judge. 

(5)  Frenchmen  will  live  under  French  laws  as  regards  the  pun- 
ishment of  crimes  and  offenses  committed  in  Madagascar. 

(6)  French  subjects  may  freely  reside,  travel,  and  carry  on  trade 
throughout  the  Queen's  dominions.  They  will  be  entitled  to  lease 
for  undetermined  periods  or  to  take  leases  for  long  periods,  renew- 
able at  the  sole  pleasure  of  the  contracting  parties,  land,  houses, 
shops,  and  all  other  descriptions  of  real  property,  and  may  freely 
engage  and  take  into  their  service,  on  any  footing,  any  Malagasy 
subject  who  may  be  unhindered  by  previous  engagements.  Leases 
and  contracts  with  work-people  will  be  certified  in  due  form  before 
the  French  resident  and  the  magistrates  of  the  country,  and  the 
strict  execution  of  the  provisions  of  such  instruments  will  be  guar- 
anteed by  the  Government.  At  the  death  of  a  Frenchman  who 
may  have  been  the  tenant  of  any  landed  or  house  property,  his  heirs 
will  have  the  benefit  of  the  remaining  term  of  the  lease  concluded 
by  the  deceased,  with  the  power  of  renewing  the  same.     French- 


APPENDIX  211 

men    will    only   be   called   upon    for   the    land    tax    paid    by    the 
Malagasies. 

No  person  shall  have  access  to  the  property  or  enter  the  estab- 
lishments or  houses  occupied  by  Frenchmen,  or  by  any  person  in 
their  service,  except  with  the  sanction  of  the  P'rench  resident. 

(7)  The  Queen  expressly  confirms  the  guarantees  sti[>ulated  by 
the  treaty  of  August  7,  1885,  in  favor  of  liberty  of  conscience  and 
religious  toleration. 

(8)  The  Queen's  Government  undertakes  to  pay  the  sum  of 
10,000,000  francs,  to  be  applied  in  the  settlement  of  French  claims 
liquidated  before  the  last  war,  and  in  compensation  for  the  damages 
suffered  by  foreign  subjects  by  reason  of  that  war.  The  investiga- 
tion and  settlement  of  these  indemnities  is  left  to  the  French 
Government. 

(9)  Until  payment  in  full  of  the  above-mentioned  sum  French 
troops  will  occupy  Tamatave. 

(10)  No  claim  will  be  admitted  in  connection  with  the  measures 
taken  up  to  the  present  by  the  French  military  authorities. 

(11)  The  Government  of  the  French  Republic  undertakes  to 
lend  assistance  to  the  Queen  in  the  defense  of  her  states. 

(12)  The  Queen  will  continue  as  heretofore  to  preside  over  the 
internal  administration  of  the  whole  island. 

(13)  In  consideration  of  these  engagements,  the  French  Republic 
agrees  to  desist  from  any  renewal  of  its  demand  for  a  war  indemnity. 

(14)  The  Government  of  the  French  Republic,  in  order  to  aid 
the  advance  of  the  Malagasy  Government  and  people  on  the  path 
of  civilization  and  progress,  undertakes  to  place  at  the  Queen's 
disposal  the  military  instructors,  engineers,  professors,  and  artisan 
foremen  whose  services  may  be  applied  for. 

(15)  The  Queen  expressly  undertakes  to  treat  with  good  will 
the  Sakalavas  and  Antankares,  agreeably  to  the  information  on  this 
subject  furnished  by  the  French  Government.  The  Government 
of  the  Republic  reserves  to  itself  the  right  of  occupying  the  Bay  of 
Diego  Suarez,  and  of  creating  there  the  establishments  that  it  may 
consider  desirable. 

(16)  The  President  of  the  French  Republic  and  the  Queen  grant 
a  general  and  complete  amnesty,  accompanied  by  the  raising  of  all 
sequestrations  placed  upon  their  property,  to  their  respective  sub- 
jects, who  prior  to  the  conclusion  of  peace  compromised  themselves 
by  serving  the  other  contracting  party. 


212         LAW  AND  POLICY  OF  ANNEXATION 

(17)  The  actually  existing  treaties  and  conventions  between  the 
French  Republic  and  the  Queen  are  expressly  confirmed  in  so  far 
as  they  may  not  be  contrary  to  stipulations  of  the  present  treaty. 

(18)  The  present  treaty  has  been  drawn  up  in  French  and 
Malagasy,  the  two  versions  having  exactly  the  same  sense,  so  that 
the  two  texts  may  be  legally  cited  in  every  respect. 

(19)  The  present  treaty  shall  be  ratified  within  a  period  of  three 
months. 

Made  in  duplicate  on  board  the  Naiida,  in  the  harbor  of  Tama- 
tave,  December  17,  1885. 

The  rear-admiral  commanding  in  chief  the  naval  division  of  the 
Indian  Ocean,  E.  Miot. 

The  minister  plenipotentiary  of  the  French  Republic, 

S.  Patrimonio, 

The  minister  plenipotentiary  of  Her  Majesty  the  Queen  of  Mada- 
gascar, general  officer  commanding  the  Malagasy  forces, 

DiGBY   WiLLOUGHBY. 
(Madagascar  has  lately  been  formally  annexed  by  France.) 


TRANSFER   OF    MYSORE   TO    A    NATIVE    RULER 

(Lee-Warner,  The  Protected  Princes  of  India,  p.  166) 

Whereas  the  British  Government  has  now  been  for  a  long  period 
in  possession  of  the  territories  of  Mysore,  and  has  introduced  into 
the  said  territories  an  approved  system  of  administration :  And 
whereas,  on  the  death  of  the  late  Maharaja,  the  said  Government, 
being  desirous  that  the  said  territories  should  be  administered  by 
an  Indian  dynasty  under  such  restrictions  and  conditions  as  might 
be  necessary  for  ensuring  the  maintenance  of  the  system  of  admin- 
istration so  introduced,  declared  that  if  Maharaja  Chamrajendra 
Wadiar  Bahadur,  the  adopted  son  of  the  late  Mahdraja,  should,  on 
attaining  the  age  of  eighteen  years,  be  found  qualified  for  the  posi- 
tion of  ruler  of  the  said  territories,  the  government  thereof  should 
be  entrusted  to  him,  subject  to  such  conditions  and  restrictions  as 
might  be  thereafter  determined :  And  whereas  the  said  Maharaja 
Cliamrajendra  Wadiar  Bahadur  has  now  attained  the  said  age  of 


APPENDIX  213 

eighteen  years,  and  appears  to  the  British  Government  quaHfied 
for  the  position  aforesaid,  and  is  about  to  be  entrusted  with  the 
government  of  the  said  territories  :  And  whereas  it  is  expedient  to 
grant  to  the  said  Maharaja  Chamrajendra  Wadiar  Bahadur  a 
written  instrument  defining  the  conditions  subject  to  which  he  will 
be  so  entrusted  :  It  is  hereby  declared  as  folloAvs  : — 

(i)  The  Maharaja  Chamrajendra  Wadiar  Bahadur  shall,  on  the 
twenty-fifth  day  of  March,  1 881,  be  placed  in  possession  of  the 
territories  of  Mysore,  and  installed  in  the  administration  thereof. 

(2)  The  said  Maharaja  Chamrajendra  Wadiar  Bahadur,  and 
those  who  succeed  him  in  manner  hereinafter  provided,  shall  be 
entitled  to  hold  possession  of  and  administer  the  said  territories  as 
long  as  he  and  they  fulfil  the  conditions  hereinafter  prescribed. 

(3)  The  succession  to  the  administration  of  the  said  territories 
shall  devolve  upon  the  lineal  descendants  of  the  said  Maharaja 
Chamrajendra  Wadiar  Bahadur,  whether  by  blood  or  adoption, 
according  to  the  rules  and  usages  of  his  family,  except  in  case  of 
disqualification  through  manifest  unfitness  to  rule. 

Provided  that  no  succession  shall  be  valid  until  it  has  been 
recognized  by  the  Governor-General  in  Council. 

In  the  event  of  a  failure  of  lineal  descendants,  by  blood  and 
adoption,  of  the  said  Maharaja  Chamrajendra  Wadiar  Bahadur, 
it  shall  be  within  the  discretion  of  the  Governor-General  in 
Council  to  select  as  a  successor  any  member  of  any  collateral 
branch  of  the  family  whom  he  thinks  fit. 

(4)  The  Maharaja  Chamrajendra  Wadiar  Bahadur  and  his 
successors  (hereinafter  called  the  Maharaja  of  Mysore)  shall  at 
all  times  remain  faithful  in  allegiance  and  subordination  to  Her 
Majesty  the  Queen  of  Great  Britain  and  Ireland  and  Empress  of  In- 
dia, her  heirs  and  successors,  and  perform  all  the  duties  which,  in  vir- 
tue of  such  allegiance  and  subordination,  may  be  demanded  of  them. 

(5)  The  British  Government  having  undertaken  to  defend 
and  protect  the  said  territories  against  all  external  enemies,  and 
to  relieve  the  Maharaja  of  Mysore  of  the  obligation  to  keep 
troops  ready  to  serve  with  the  British  army  when  required,  there 
shall,  in  consideration  of  such  undertaking,  be  paid  from  the 
revenues  of  the  said  territories  to  the  British  Government  an 
annual  sum  of  Government  rupees  thirty-five  lakhs  in  two  half- 
yearly  instalments,  commencing  from  the  said  twenty-fifth  day 
of  March,  1881. 


214         LAW  AND  POLICY  OF  ANNEXATION 

(6)  From  the  date  of  the  Maharaja's  taking  possession  of  the 
territories  of  Mysore  the  British  sovereignty  in  the  island  of 
Seringapatam  shall  cease  and  determine,  and  the  said  island  shall 
become  part  of  the  said  territories,  and  be  held  by  the  Maharaja 
upon  the  same  conditions  as  those  subject  to  which  he  holds  the 
rest  of  the  said  territories. 

(7)  The  Maharaja  of  Mysore  shall  not,  without  the  previous 
sanction  of  the  Governor-General  in  Council,  build  any  new 
fortresses  or  strongholds,  or  repair  the  defences  of  any  existing 
fortresses  or  strongholds  in  the  said  territories. 

(8)  The  Maharaja  of  Mysore  shall  not,  without  the  permission 
of  the  Governor-General  in  Council,  import  or  permit  to  be  im- 
ported into  the  said  territories  arms,  ammunition,  or  military  stores, 
and  shall  prohibit  the  manufacture  of  arms,  ammunition,  and 
military  stores  throughout  the  said  territories,  or  at  any  specified 
place  therein,  whenever  required  by  the  Governor- General  in 
Council  to  do  so. 

(9)  The  Maharaja  of  Mysore  shall  not  object  to  the  mainte- 
nance or  establishment  of  British  cantonments  in  the  said  territories, 
whenever  and  wherever  the  Governor-General  in  Council  may 
consider  such  cantonments  necessary.  He  shall  grant  free  of  all 
charge  such  land  as  may  be  required  for  such  cantonments,  and 
shall  renounce  all  jurisdiction  within  the  land  so  granted.  He 
shall  carry  out  in  the  lands  adjoining  British  cantonments  in  the 
said  territories  such  sanitary  measures  as  the  Governor-General  in 
Council  may  declare  to  be  necessary.  He  shall  give  every  facility 
for  the  provision  of  supplies  and  articles  required  for  the  troops  in 
such  cantonments,  and  on  goods  imported  or  purchased  for  that 
purpose  no  duties  or  taxes  of  any  kind  shall  be  levied  without  the 
assent  of  the  British  Government. 

(10)  The  military  force  employed  in  the  Mysore  state  for  the 
maintenance  of  internal  order  and  the  Maharaja's  personal  dignity, 
and  for  any  other  purposes  approved  by  the  Governor-General  in 
Council,  shall  not  exceed  the  strength  which  the  Governor-General 
in  Council  may  from  time  to  time  fix.  The  directions  of  the 
Governor-General  in  Council  in  respect  to  the  enlistment,  organiza- 
tion, equipment,  and  drill  of  troops  shall  at  all  times  be  complied 
with. 

(11)  The  Maharaja  of  Mysore  shall  abstain  from  interference  in 
the  affairs  of  any  other  state  or  power,  and  shall  have  no  com- 


APPENDIX  215 

munication  or  correspondence  with  any  other  state  or  power,  or 
the  agents  or  officers  of  any  other  state  or  power,  except  with  the 
previous  sanction  and  through  the  medium  of  the  Governor- 
General  in  Council. 

(12)  The  Maharaja  of  Mysore  shall  not  employ  in  his  service 
any  person  not  a  native  of  India  without  the  previous  sanction  of 
the  Governor-General  in  Council,  and  shall,  on  being  so  required 
by  the  Governor-General  in  Council,  dismiss  from  his  service  any 
person  so  employed. 

(13)  The  coins  of  the  Government  of  India  shall  be  a  legal 
tender  in  the  said  territories  in  the  cases  in  which  payment  made 
in  such  coins  would,  under  the  law  for  the  time  being  in  force,  be 
a  legal  tender  in  British  India ;  and  all  laws  and  rules  for  the  time 
being  applicable  to  coins  current  in  British  India  shall  apply  to 
coins  current  in  the  said  territories.  The  separate  coinage  of  the 
Mysore  state,  which  has  long  been  discontinued,  shall  not  be 
revived. 

(14)  The  Maharaja  of  Mysore  shall  grant  free  of  all  charge 
such  land  as  may  be  required  for  the  construction  and  working 
of  lines  of  telegraph  in  the  said  territories  wherever  the  Governor- 
General  in  Council  may  require  such  land,  and  shall  do  his  utmost 
to  facilitate  the  construction  and  working  of  such  lines.  All  lines 
of  telegraph  in  the  said  territories,  whether  constructed  and  main- 
tained at  the  expense  of  the  British  Government,  or  out  of  the 
revenues  of  the  said  territories,  shall  form  part  of  the  British 
telegraph  system,  and  shall,  save  in  cases  to  be  specially  excepted 
by  agreement  between  the  British  Government  and  the  Maharaja 
of  Mysore,  be  worked  by  the  British  Telegraph  Department ;  and 
all  laws  and  rules  for  the  time  being  in  force  in  British  India  in 
respect  to  telegraphs,  shall  apply  to  such  lines  of  telegraph  when 
so  worked, 

(15)  If  the  British  Government  at  any  time  desires  to  construct 
or  work,  by  itself  or  otherwise,  a  railway  in  the  said  territories,  the 
Maharaja  of  Mysore  shall  grant  free  of  all  charge  such  land  as  may 
be  required  for  that  purpose,  and  shall  transfer  to  the  Governor- 
General  in  Council  plenary  jurisdiction  within  such  land;  and  no 
duty  or  tax  whatever  shall  be  levied  on  through  traffic  carried  by 
such  railway  which  may  not  break  bulk  in  the  said  territories. 

(16)  The  Maharaja  of  Mysore  shall  cause  to  be  arrested  and 
surrendered  to  the  proper  officers  of  the  British  Government  any 


2i6         LAW  AND  POLICY  OF  ANNEXATION 

person  within  the  said  territories  accused  of  having  committed  an 
offence  in  British  India,  for  whose  arrest  and  surrender  a  demand 
may  be  made  by  the  British  Resident  in  Mysore,  or  some  other 
officer  authorized  by  him  in  this  behalf;  and  he  shall  afford  every 
assistance  for  the  trial  of  such  persons  by  causing  the  attendance 
of  witnesses  required,  and  by  such  other  means  as  may  be 
necessary. 

(17)  Plenary  criminal  jurisdiction  over  European  British  sub- 
jects in  the  said  territories  shall  continue  to  be  vested  in  the 
Governor-General  in  Council,  and  the  Maharaja  of  Mysore  shall 
exercise  only  such  jurisdiction  in  respect  to  European  British 
subjects  as  may  from  time  to  time  be  delegated  to  him  by  the 
Governor-General  in  Council. 

(18)  The  Maharaja  of  Mysore  shall  comply  with  the  wishes  of 
the  Governor-General  in  Council  in  the  matter  of  prohibiting  or 
limiting  the  manufacture  of  salt  and  opium,  and  the  cultivation  of 
poppy,  in  Mysore;  also  in  the  matter  of  giving  effect  to  all  such 
regulations  as  may  be  considered  proper  in  respect  to  the  export 
and  import  of  salt,  opium,  and  poppy  heads. 

(19)  All  laws  in  force  and  rules  having  the  force  of  law  in  the 
said  territories  when  the  Maharaja  Chamrajendra  Wadiar  Bahadur 
is  placed  in  possession  thereof,  as  shown  in  the  schedule  hereto 
annexed,  shall  be  maintained  and  efficiently  administered,  and, 
except  with  the  previous  consent  of  the  Governor-General  in 
Council,  the  Maharaja  of  Mysore  shall  not  repeal  or  modify  such 
laws,  or  pass  any  laws  or  rules  inconsistent  therewith. 

{20)  No  material  change  in  the  system  of  administration,  as 
established  when  the  Maharaja  Chamrajendra  Wadiar  Bahadur  is 
placed  in  possession  of  the  territories,  shall  be  made  Avithout  the 
consent  of  the  Governor-General  in  Council. 

(21)  All  title-deeds  granted  and  all  settlements  of  land  revenue 
made  during  the  administration  of  the  said  territories  by  the 
British  Government,  and  in  force  on  the  said  17th  day  of  March, 
1 88 1,  shall  be  maintained  in  accordance  with  the  respective  terms 
thereof,  except  in  so  far  as  they  may  be  rescinded  or  modified 
either  by  a  competent  Court  of  law,  or  with  the  consent  of  the 
Governor-General  in  Council. 

(22)  The  Maharaja  of  Mysore  shall  at  all  times  conform  to 
such  advice  as  the  Governor-General  in  Council  may  offer  him 
with  a  view  to  the  management  of  his  finances,  the  settlement 


APPENDIX  217 

and  collection  of  his  revenues,  the  imposition  of  taxes,  the  admin- 
istration of  justice,  the  extension  of  commerce,  the  encouragement 
of  trade,  agriculture,  and  industry,  and  any  other  objects  connected 
wfth  the  advancement  of  His  Highness's  interests,  the  happiness 
of  his  subjects,  and  his  relations  to  the  British  Government. 

(23)  In  the  event  of  the  breach  or  non-observance  by  the 
Maharaja  of  Mysore  of  any  of  the  foregoing  conditions,  the 
Governor-General  in  Council  may  resume  possession  of  the  said 
territories  and  assume  the  direct  administration  thereof,  or  make 
such  other  arrangements  as  he  may  think  necessary  to  provide 
adequately  for  the  good  government  of  the  people  of  Mysore,  or 
for  the  security  of  British  rights  and  interests  within  the  province. 

(24)  This  document  shall  supersede  all  other  documents  by 
which  the  position  of  the  British  Government  with  reference  to  the 
said  territories  has  been  formally  recorded.  And,  if  any  question 
arise  as  to  whether  any  of  the  above  conditions  has  been  faithfully 
performed,  or  as  to  whether  any  person  is  entitled  to  succeed,  or 
is  fit  to  succeed  to  the  administration  of  the  said  territories,  the 
decision  thereon  of  the  Governor- General  in  Council  shall  be  final. 

(Signed)     Ripon, 

Viceroy  and  Governor-General. 

Fort  Willia?n,  1st  March,  i88r. 


LAGOS   PROTECTORATE    ORDER    IN    COUNCIL 

(The  London  Gazette,  January  5,  1900) 

At  the  Court  at  Windsor,  the  27th  day  of  December,  1899. 

Present, 

The  Queen's  Most  Excellent  Majesty.  His  Royal  Highness  the 
Duke  of  Connaught  and  Strathearn.     Mr.  Balfour.     Mr.  Ritchie. 

Whereas  Her  Majesty  hath  acquired  power  and  jurisdiction  within 
divers  countries  on  the  West  Coast  of  Africa,  near  or  adjacent  to 
Her  Majesty's  Colony  of  Lagos  : 

And  whereas  by  an  Order  in  Council  bearing  date  the  twenty- 
ninth  day  of  December  one  thousand  eight  hundred  and  eighty- 
seven,  it  was  provided  that  it  should  be  lawful  for  the  Legislative 
Council  for  the  time  being  of  the  Colony  of  Lagos,  by  Ordinance 
or  Ordinances,  to  exercise  and  provide  for  giving  effect  to  all  such 
14A 


2i8         LAW  AND  POLICY  OF  ANNEXATION 

powers  and  jurisdiction  as  Her  Majesty  might,  at  any  time  before 
or  after  the  passing  of  the  said  Order  in  Council,  have  acquired  in 
the  said  territories  adjacent  to  the  Colony  of  Lagos,  subject  to  such 
provisions  as  are  in  the  said  Order  in  Council  described  and  set 
forth  : 

And  whereas,  it  is  expedient  to  define  the  limits  within  which  the 
powers  and  jurisdiction  of  Her  Majesty  in  the  said  territories  under 
the  provisions  of  the  said  Order  in  Council  shall  in  future  be  exer- 
cised. 

Now,  therefore.  Her  Majesty,  in  pursuance  of  the  powers  by 
"  The  Foreign  Jurisdiction  Act,  1890,"  or  otherwise  in  Her  Majesty 
vested,  by  and  with  the  advice  of  Her  Privy  Council,  is  pleased  to 
order,  and  it  is  hereby  ordered,  as  follows : 

I.  This  Order  may  be  cited  as  the  Lagos  Protectorate  Order  in 
Council,  1899. 

II.  Subject  to  the  provisions  of  the  said  Order  in  Council  of  the 
twenty-ninth  December  one  thousand  eight  hundred  and  eighty- 
seven,  the  Legislative  Council  for  the  time  being  of  the  Colony  of 
Lagos  may  by  Ordinance  or  Ordinances,  exercise  and  provide  for 
giving  effect  to  all  such  powers  and  jurisdiction  as  Her  Majesty 
may,  at  any  time  either  before  or  after  the  passing  of  this  Order, 
have  acquired  or  may  acquire  within  such  of  the  territories  of  the 
West  Coast  of  Africa  near  or  adjacent  to  the  Colony  of  Lagos  as 
are  within  the  limits  of  this  order. 

Provided  that  nothing  in  any  such  Ordinance  or  Ordinances  con- 
tained shall  take  away  or  affect  any  rights  secured  to  any  natives  in 
the  said  territories  by  any  Treaties  or  arrangements  made  on  behalf 
or  with  the  sanction  of  Her  Majesty,  and  that  all  such  Treaties  and 
agreements  shall  be  and  remain  operative  and  in  force,  and  that  all 
pledges  and  undertakings  therein  contained  shall  remain  mutually 
binding  on  all  parties  to  the  same. 

IIL  The  limits  of  this  Order  are  the  territories  of  Africa  bounded 
by  the  following  line,  ...  ...         ...         ...         •  •  • 

Provided  always  that  such  parts  of  territories  so  bounded  as  are 
within  that  portion  of  Her  Majesty's  dominions  which  is  known  as 
the  Colony  of  Lagos,  shall  not  be  included  within  the  limits  of  this 
Order.  The  territories  within  the  limits  of  this  Order  shall  be 
known  and  described  as  the  Lagos  Protectorate. 

IV.  This  Order  shall  be  published  in  the  Gazette  of  the  Colony 
of  Lagos,  and  shall  thereupon  commence  and  come  into  operation ; 


APPENDIX  219 

and  the  Governor  shall  give  directions  for  the  publication  of  this 
Order  at  such  places,  and  in  such  manner,  and  for  such  time  or 
times  as  he  thinks  proper  for  giving  due  publicity  thereto  within  the 
Lagos  Protectorate. 

And  the  Right  Honorable  Joseph  Chamberlain,  one  of  Her  Maj- 
esty's Principal  Secretaries  of  State,  is  to  give  the  necessary  direc- 
tions herein  accordingly. 

A.  W.  FiTz  Roy. 


INDEX    OF    CASES 


AMERICAN 

American  Ins.  Co.  v.  Canter,  5,  23,  61, 

63,  123, 131 
American  Publisliing  Co.  v.  Fisher,  38 
Apollon,  The,  24,  156 

Beard  v.  Burts,  117 
Betancourt  v.  Life  Ass'n,  185 
Black  V.  Jackson,  38 
Bollman's  Case,  36,  loi 
Boyd  V.  Thayer,  62,  63 
Bradfield  v.  Roberts,  141 
Brien  v.  Williamson,  34 

Callan  v.  Wilson,  38 

Capital  Traction  Co.  v.  Hof.,  40 

Cessna  v.  U.  S.,  133 

Cherokee  Nation  v.  Georgia,  15,  94 

"         Tobacco,  17 
Chicago,  etc.,  R.  v.  McGlinn,  133,  134 
■—HThisholm  v.  Georgia,  64 
City  of  Panama,  The,  40 
Civil  Rights  Cases,  67 
Cohens  v.  Virginia,  82 
Cross  V.  Harrison,  77,  79,  80,  107,  112, 
134 

Davis  V.  Beason,  140 

Doe  V.  Braden,  17  .^ 

Elk  V.  Wilkins,  57 

Faxon  v.  U.  S.,  143 
Field  V.  Clark,  no 
Fleming  v.  Page,  5,  13,  79 
Fong  Yue  Ting  v.  U.  S.,  16,  40 
Fort  Leavenworth  R.  v.  Lowe,  147 
Foster  v.  Neilson,  7,  iSo 
France  v.  Connor,  124 
,  Fremont  e/.  U.  S.,  135 

Gassies  v.  Ballon,  50 
Gelston  v.  Hoyt,  7 


Geofroy  t/.  Riggs,  17,39 
Gibbons  v.  Dist.  Columbia,  88 

V.  Ogden,  94,  97 
Goetze  v.  U.  S.,  15,  19,  24,  26,  74 
Groves  v.  Slaughter,  33,  93,  94 

Hart  V.  Burnet,  132 
Headmoney  Cases,  16 
Holden  v.  Hardy,  138 
Honomu  Sugar  Co.  v.  Zeluch,  69 
Hylton  V.  U.  S.,  85 

Jaremillo  v.  Romero,  69 
Johnson  v.  Mcintosh,  2,  5 
Jones  -'.  U.  S.,  5,  7,  179 

Keene  v.  McDonough,  132 
Keith  V.  Clark,  98 
Knowlton  v.  Moore,  87 

Lattimer  v.  Poteet,  17 
Legal  Tender  Cases,  94 
Leitensdorfer  z/.  Webb,  in 
Lem  Moon  Sing  v.  U.  S.,  59 
License  Cases,  17 

Loughborough  v.  Blake,  8,  40,  42,  78, 
85,87 

McAllister  v.  U.  S.,  40 
'Marbury  v.  Madison,  47,  99 
Martin  v.  Mott,  109 
Maynard  v.  Hill,  30,  40 
Mena  v.  Le  Roy,  132 
Milligan's  Case,  107 
Mitchel  V.  U.  S.,  127 
Mormon  Church  v.  U.  S.,  40,  71,  140 
Murphy  v.  Ramsey,  40,  71 

National  Bank  v.  Guthrie,  t,^ 

"  "    V.  Yankton,  39,  40,  71, 

124 
New  Orleans  v.  De  Armas,  9,  28 

«  "       V.  U.  S.,  17,  131 

"  "       7:  Winter,  39 


221 


222 


INDEX  OF  CASES 


Ortiz,  ex  parte,  38 

Picton's  Case,  131 
Pollard  -'.  Hagan,  37,  131,  137 
Pollock  V.  Trust  Co.,  85 
Protector,  The,  107 

Reform,  The,  96 
Resolution,  The,  3 
Robertson  v.  Baldwin,  49,  68 
Ross's  Case,  26,  41,  50,  76,  156 
Ryder  v.  Cohen,  132 

Sah  Quail's  Case,  66 

Scott  f.  Sandford,  8,"40,'7o,  123 

S^re  V.  Pitot,  122 

Shively  v.  Bowlby,  5,^9, 124 

Siebold's  Case,  loi 

Slaughter-house  Cases,  40,  53,  69 

Snow  V.  U.  S.,  39 

Springville  v.  Thomas,  38 

Stoughtenburgh  v.  Hennick,  92 

Strader  v.  Graham,  40 

Strother  v.  Lucas,  132 

Stuart  V.  Easton,  185 

Talbott  V.  Silver  Bow  County,  39 
Texas  v.  White,  58 
Thirty  Hogsheads  of  Sugar,  13 
Thomas  v.  Gay,  17 
Thompson  v.  Utah,  38 
Townsendz*.  Greeley,  132 

U.  S.  z/.  Bevans,  24 

"  V.  Cervantes,  142 

"  V.  Cruikshank,  55 

"  V.  E.  C.  Knight  Co.,  96 

"  V.  43  Gallons  of  Whisky,  95 

"  V.  Kagama,  123 

"  V.  Lynde,  180 

"  V.  Moreno,  132 

"  V.  Old  Settlers,  16 

"  V.  Percheman,  132 

"  V.  Repentigny,  59 

"  V.  Rice,  13,  79 

"  V.  Ritchie,  143 

"  V.  SevelofT,  134 

"  V.  The  Peggy,  17 


U.  S.  V.  Wong  Kim  Ark,  54,  56,  57, 69 

"     V.  Yorba,  107 
Utter  V.  Franklin,  39 

Van  Home's  Lessee  v.  Dorrance,  47 

Ware  v.  Hylton,  17 
William,  The  Brig,  93 

Yerger's  Case,  loi 

ENGLISH 

Advocate-Gen.    v.    Ranee   Surnomoye 

Dossee,  136 
Anderson's  Case,  100 

Brown's  Case,  21 

Calvin's  Case,  25 

Campbell  v.  Hall,  13,31,  132 

Damodhar  Gordhan  v.  Deoram  Kanji, 

147 
Billet's  Case,  100 

Emperor  of  Austria  v.  Day,  7 
Exchange  Bank  v.  The  Queen,  136 

Falkland  Islands  v.  The  Queen,  loo,  136 
Foltina,  The,  13 

Heathfield  v.  Chilton,  6 

La  Cloche  v.  La  Cloche,  137 

Lang  V.  Reid,  137 

Lindsay  v.  Oriental  Bank,  136 

Natal,  Lord  Bishop  of,  99 

Parlement  Beige,  The,  17 
Phillips  V.  Eyre,  116 

Speaker  v.  Glass,  100 
Sprigg  V.  Sigcau,  loo 
Stepney  Election  Petition,  25 

Walker  v.  Baird,  17 


\ 


GENERAL   INDEX 


Alaska,  9,  22,  36,  37,  66,  80,  119 

Algeria,  64 

Alienationof  territory  (see  also  Cession) 

propriety  of,  144 

right  of,  146 
Allegiance,  24,  52,  63,  64,  183 
AUiancf,  3 
Annexation,  right  of,  4 

method  of,  5-7,  13 

purpose  of,  8-10 
Annexed  territory,  status  of,  12,  23 

old  laws  of,  112,  130 

vested  rights  in,  132,  142 

courts  of,  132 
Anson,  Sir  William,  no 
Arbitrary  power,  37,  48,  50,  73,   116, 

198 
Asia,  159,  166,  168 
Australia,  21 

Belligerent  right,  107,  177 
Benton,  Mr.,  37 
Bill  of  rights,  73 
Blackburn,  Justice,  21 
Bradley,  Justice,  40,  53,  75 
Brewer,  Justice,  40 
Bryce,  Mr.,  48 

Calhoun,  Mr.,  27 

California,  9,  23, 35,  37,  80,  86,  106, 108, 

III,  116,  131,  137,  142,  165 
Canada,  21 
Cession,  right  of,  26,  146 

stipulations  regarding,  18,  23 
Chase,  Chief  Justice,  107 
China,  148,  159 
Chinese,  59,  68 
Citizens,  natural-born,  52 

naturalized,  63 
Civil  law,  138 

rights,  10,  71 
Civil  War,  the,  4,  51,  58,  96,  98,   107, 

120,  130,  165 
ClifTord,  Justice,  40 


Coaling  stations,  8 
Cockburn,  Chief  Justice,  21,  100 
Commerce,  federal  power  over,  90-98 
domestic — 
taxation  of,  78 
embargo  on,  91 
foreign,  158,  161 
taxation  of,  76 
Commercial  unity  of  United  States,  78, 
82,  91,  102,  104,  130 
law  of  United  States,  138 
Congo  State,  24 
Congress  — 

subordinate  to  Constitution,  29 
distinguished  from  Parliament,  45, 47 
depository  of  legislative  power,  iio- 

121 
territorial  jurisdiction  of,  24,  25,  27, 

108,  121,  157,173,  176,  180 
power   over   Territories,  70,  88,  89, 

121-130 
annexation  by,  7,  13,  180,  l8l 
alienation  by,  148 
abrogation  of  treaty  by,  16 
purview  of  acts  of,  134,  1 81 
Conquest,  104,  167 
title  by,  5,  13 
effect  of,  on  treaty-making  power,  16, 

19.  147 
Consent  of  the  governed,  12,  60,  165 
Constitution  of  U.  S. — 

the  foundation  of  U.  S.,45 

inherent  force  of,  29,  102,  134 

the  source  of  authority,  46 

ineffective  beyond  U.  S.,  50,  76,  156, 

173 
theory  of  geographical  limitation,  34 

theory  of  restriction  to  States,  35,  66, 

78 
amendment  of,  105 
effect  of,  in  annexed  territory,  98,  148 
effect  of  withholding,  103 
subordination  of  treaties  to,  17,  20 
13th  Amendment  of,  16 


223 


224 


GENERAL  INDEX 


Constitution  ofU.  S.  (continued)  — 

14th  Amendment  of,  52,  56 

15th  Amendnaent  of,  73 
Contract  labor,  68 
Cooley,  Judge,  68 
Courts,  jurisdiction  "of,  76,98-101,  128 

consular,  41,  188 

territorial,  40 
Cuba,  7,  14,  20,  25,  63 

status  of,  173-190 
Curtis,  Justice,  40,  116,  120 

Danish  West  Indies,  69 
Day,  Judge  W.  R.,  20,  72 

Field,  Justice,  40 
Florida,  9,  36,  57,  61,  63,  122,  137 
"Foreign"  country,  14-16,  18,  l^,  21, 
24,  174 

port,  79 
Foreigners,  status  and  rights,  57,  182 
France,  colonies,  43 

plebiscite,  60 

treaties  of  cession,  147 
French  territory,  21 

Germany,  il,  43,  50 

Gray,  Justice,  8,  40 

Great  Britain  — 

Parliament,  31,  44,  47,  1 10 

the  Crown,  13,31,99,  no,  120,  124, 

128,  147 
British  territory,  21 
colonies,  21,  44,  no,  125,  136 
contrasted  with  United  States,  44,45, 
67,  99,  loi,  no,  112 

Guano  Islands,  8 

Habeas  corpus,  100,  loi 
Hamilton,  Mr.,  73 
Hanolaux,  AT.,  21 
Hanover,  24 
Harlan,  Justice,  40,  47 
Harrison,  Mr.,  65 
Hawaii,  6,  9,  59 
Home  market,  90 
House  of  Representatives  — 
powers  regarding  annexation,  22 


House  of  Representatives  (continued) — 
powers  regarding  cession,  148 

Indemnity  — 

Acts  of,  113 

for  cost  of  war,  104 
Indians,  II,  15,  57,  66,  94,  95,  186 
Insurrection,  3,  51,  58,  108,  120,  177 
International  Law,  5 

duty  of  occupant  under,  12,  174 

private,  184 
Italy,  43 

Jackson,  Gen.,  36 

Japan,  41,  63 

Java,  43 

Jefferson,  President,  119,  131 

Jury,  trial  by,  38 

Kearny  Code  of  New  Mexico,  no 

Lacombe,  Judge,  185 

Language  of  annexed  country,  138 

Lincoln,  President,  130 

Louisiana,  9,  35,  36,  79,  126,  131,  133, 

137,  165 
Lucas,  Mr.  C.  F.,  125 

MacArthur,  Gen.,  161 

McKinley,  President,  119,  143,  149 

Madagascar,  21 

Mansfield,  Lord,  6,  13,  31 

Marshall,  Chief  Justice,  i,  5,  8,  15,  22, 

24,  40,  46,  61,  63,  82,  87,  94,  97, 

122,  123,  131,  179 
Matthews,  Justice,  40 
Mexico,  23,  79 
MiHtary  government,  106-109,  114,132, 

176 
occupation,  106,  in,  174,  176,  189 
Militia,  109,  154 
Miller,  Justice,  40 
Mohammedan  tribes,  57,  66,  140,  151, 

164 
Monroe  Doctrine,  166,  169 

National  title  to  land,  2,  3 
Nationality  of  territory,  20,  183 


GENERAL   INDEX 


225 


Nationality  (continued)  — 

persons,  20 

change  of,  61 

election  of,  20,  59,  148 
Naturalization  Acts,  54 

Oath  of  office,  constitutional,  45 

Passports,  to  Cubans,  187 

Peonage,  68 

Philippine  Commission  — 

First,  lOl,  113,  152 

Second,  113, 143,  153 
Philippine  Islands  — 

title  of  Spain  to,  I 

title  of  U.  S.  to,  10 

description  of,  1 1 

part  of  U.  S.,  27,  144 

insurrection  in,  51,  58,  129,  161-166 

Tagals,  58 

value  of  Constitution  in,  98 

neglected  by  Congress,  118 

administration  of  local  affairs,  124 

bill  for  government  of,  126 

friars  in  the,  142 

their  relation  to  trade,  159 

reasons  for  alienating,  158 

protectorate  over,  148 

neutralization  of,  155 
Plebiscite,  59,  148 
Political  franchises,  70 

questions,  7,  8,  28,  32,  105,  107,  148, 
179.  185 

power  in  U.  S.,  13,  42 

institutions    in    annexed    territories, 

130.  131 
Polk,  President,  37,  119 
Polygamy,  140 

Porto  Rico,  6,  7,  14,  15,  22,24,  25.  35. 
81,  107,  116,  135 
Government  Act,  32,  82,  108 
President  of  U.  S. — 

povi'ers  in   U.  S.,  31,  52,  76,  80,  81, 

106-121, 144 
abroad,  25,  in,  176 
distinguished  from  British  Crown,  13, 
31,99,  no,  120,  124,  128,  147 
Protectorate,  10,  26,  46,  148,  175 


Religious  institutions,  133,  140 
Russia,  43,  186 

Salisbury,  Lord,  60 

Samoa,  155,  157 

Self-government,  capacity  for,  153 

Settlement,  title  by,  5 

Seward,  Mr.,  60 

Slavery,  n,  33,  35,  37,  65,  70,  92 

Spain,  title  to  Philippines,  i 

title  to  Sulu  Islands,  10 

commercial  privileges  in  Philippines, 
18 
Spanish  residents  in  islands,  20,  60, 184 

law,  135,  183 
"State,"  39,  174,  187 
States,  union  of,  24 

States  of  the  Union,  status  and  powers, 
13,  39,  42,  49,  97 

admission  of,  8,  28,  32 

cession  of  territory,  147 
Story,  Justice,  24,  36,  92,  94,  156 
Subjects,  64,  183 
Suffrage,  49,  55,  71,  73 
Sulu  Islands,  10,  67,  146 

Tagals,  58 

Taney,  Chief  Justice,  5,  8,  40,  123 

Tariffs,  90 

(See  Commerce,  Taxation) 
Taylor,  President,  116 
Taxation,  federal,  36,  49,  84-87 

uniformity,  18,34,  77,  82,  86,  90,  n2 

in  Territories,  88-90 
Territories  of  U.  S. — 

status  of,  15,39,53 

power  of  Congress  over,  122 

"popular  sovereignty"  in,  70 

administration  of,  83,  88,  124 
Texas,  6,  9 
Treaty,  construction  of,  16-19 

subordinate  to  Constitution,  1 7 

of  annexation,  5-7,  59,  148 

ratification  of,  22 

the  making  of  a,  13,  147 
Treaty  of  Paris,  3,  10,  16,  17,  22,  132 

Article  I,  1 73.  174,  189 

Article  IV,  18 


226 


GENERAL  INDEX 


Treaty  of  Paris  (continued)  — 

Article  VIII,  142 

Article  IX,  18,  20,  62,  63,  183 
Treaty  of  San  Ildefonso,  153 

"  United  States,"  meanings  of,   12-15, 

42,  52,  78,  188 
"  United  States  of  America,"  35,  45 
Utah,  40,  54 


Uti  possidetis,  180 

Waite,  Chief  Justice,  40 
War  (see  Belligerent  right,  Conquest, 
Insurrection)  — 

change  of  title  by,  2,  5 

termination  of,  107 
Webster,  Mr.,  31,  37 
Wilson,  Justice,  64,  73 


ERRATA 

Page  20,  last  line, /or  Cogordon  rea^/  Cogordan. 
Page  45,  line  3,/^r  is  not  in  line  with  read  x?,  in 
line  with. 


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